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THE   RECONCILIATION    OF   GOVERNMENT 

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THE  RECONCILIATION  OF 
GOVERNMENT  WITH  LIBERTY 


THE  BECONCILIATION  OF 
GOVEEMEFT  WITH  LIBEETY 


BY 

JOHN  W.  BURGESS,  PH.D.,  Ju.D.,  LL.D. 

FORMERLY  PROFESSOR  OF  POLITICAL  SCIENCE  AND  CONSTITUTIONAL  LAW,  AND  DEAN 

OF  THE  FACULTIES  OF  POLITICAL  SCIENCE,  PHILOSOPHY  AND 

PURE   SCIENCE,   IN  COLUMBIA  UNIVERSITY 


NEW  YORK 

CHARLES   SCRIBNER'S   SONS 
1915 


•  -• 


COPYRIGHT,  1915,  BY 
CHARLES  SCRIBNER'S  SONS 

Published  October,  1915 


INTRODUCTION 

IT  has  been  the  search  of  the  ages  to  find  a  political 
system,  the  travail  of  the  ages  to  construct  one,  in  which 
Government  and  Liberty  shall  be  reconciled,  in  which 
each  of  these  all-comprehending  means  of  civilization  shall 
strengthen  the  other  and  in  which  finally  each  shall  be  the 
fulfilment  of  the  other.  Down  to  the  present  moment 
this  millennial  equilibrium  has  not  been  fully  attained  and 
mankind  always  has  been,  and  still  is,  in  danger  of  diverg- 
ing from  the  true  path  which  leads  to  it,  towards  despotism 
on  the  one  side  or  anarchy  on  the  other.  The  only  pro- 
tection against  these  dangers  is  a  correct  and  profound 
appreciation  of  the  historical  development  of  the  state. 
Such  a  study  is,  however,  so  exacting,  not  to  say  exhaust- 
ing, that  it  must  be  made  for  the  mass  of  men  as  brief 
and  concise  as  possible. 


CONTENTS 

BOOK  I— ASIA  AND  AFRICA 

PAGE 

I.  THE  EFFORT  OF  ASIA  TO  SOLVE  THIS  PROBLEM    .        i 

The  religious  genius  of  Asia — The  independent  states  of  Asia — The  basis 
of  the  ancient  Chinese  state — The  Government  founded  by  the  Chun  dy- 
nasty— The  Won  Wang  dynasty  and  the  Feudal  System  in  China — Confucius 
and  his  political  philosophy — The  Imperial  policy  towards  Confucianism — 
The  triumph  of  Confucianism  in  Government — The  Censors  and  the  Council 
of  Censors — The  Manchu  Government  and  Confucianism — The  Constitution 
of  1906  and  the  Revolution  of  1911 — Individual  Immunity  in  the  Constitution 
of  1911,  and  Judicial  protection — Conquest  of  Japan  by  Chinese  adventurers 
— The  Mikado  Absolutism — Buddhism  and  the  Feudal  System  in  Japan — 
The  establishment  of  the  Shogunate  and  the  Feudal  System  in  Japan — The 
despotism  of  the  Shogun — Re-establishment  of  the  Mikadoate — The  Con- 
stitution of  1889— The  Bill  of  Rights  in  the  Japanese  Constitution— The 
Judicial  Power  and  Private  Rights — The  Japanese  Constitution  a  charter  of 
despotism — The  political  system  of  Ancient  Persia — Mohammedanism  and 
Government  in  Persia— Mahomet  and  the  political  transformation  in  Arabia 
— The  Koran  as  a  limitation  on  despotism — Persian  Government  limited  by 
the  Mohammedan  priesthood — The  power  of  the  Mujtahid  of  Kerbela — 
Decline  of  Mohammedanism— The  Constitution  of  1906 — The  Revolution 
of  1908— The  Establishment  of  the  Ottoman  Empire — Mohammedanism 
and  the  Empire  of  the  Osmanli — The  Turkish  Empire  in  Asia  and  in  Europe 
—The  Sheikh  ul  Islam  and  the  Ulemas;  their  place  in  the  Government— The 
new  military  system  and  the  Harem— The  decadence  of  the  Ottoman  Empire 
— The  Turkish  Constitution  of  1876 — The  Suspension  of  the  Constitution  of 
1876  and  the  decline  of  Mohammedanism — The  Revolution  of  1908  and  the 
advent  of  the  Young  Turks— Civil  Liberty  under  the  present  Turkish  Con- 
stitution—The Senate  as  defender  of  Civil  Liberty— The  failure  of  Asia  to 
solve  the  problem  of  the  reconciliation  of  Government  and  Liberty. 

II.  THE  EFFORT  OF  AFRICA 28 

The  independent  states  of  Africa— Abyssinia,  Liberia,  and  Morocco— Li- 
beria not  to  be  considered — The  Abyssinian  Empire — Abyssinian  history 
and  institutions — Effect  of  contact  with  the  outer  world — Growth  of  the  Im- 


viii  CONTENTS 


perial  absolutism — The  limitation  imposed  by  the  Priestly  class  on  Govern- 
ment— The  political  system  of  Morocco — The  Ulemas'  College  at  Fez,  and 
their  power  in  behalf  of  limited  Government — Mohammedanism  and  Con- 
stitutional Liberty  in  general. 


BOOK  II— THE  EFFORT  OF  EUROPE 
I.    ANCIENT  GREECE 35 

The  Greeks  and  the  state  as  a  human  institution — The  political  system  of 
Ancient  Greece — The  Dorian  invasion — The  social  basis  of  the  Spartan  state 
— The  Lycurgan  Constitution — The  College  of  Ephors — The  powers  of  the 
Ephors  in  limiting  autocracy — The  downfall  of  the  Ephors — The  decay  of 
Sparta — The  Ionian  invasion — The  Athenian  state — Change  from  King  to 
Archons — The  Draconian  Constitution  and  the  Court  of  the  Ephetae — Popu- 
lar discontent  and  the  appearance  of  Cylon — The  Solonian  Constitution 
and  institutions — The  Areopagus  and  its  Judicial  power — The  advent  of 
Pisistratus  and  demagogy — The  tyranny  of  Hippias — Clisthenes  and  genuine 
democracy — The  War  with  Persia  and  its  results  on  the  Constitution  of 
Athens  and  the  relation  of  Athens  to  her  Allies — Pericles  and  Caesaristic  de- 
mocracy— Overthrow  of  the  Areopagus  by  Pericles — The  decay  of  Athens — 
Defects  in  the  constitutional  relations  of  the  Assembly  to  the  Areopagus — The 
Greek  states  as  despotisms  unable  to  form  a  National  Union — The  rule  of 
Macedon  over  Greece. 


II.    THE  EFFORT  OF  ANCIENT  ROME 49 

The  Constitution  of  ancient  Rome.  The  King,  the  Senate  and  the 
Comitia  Curiata — The  reforms  of  Servius  Tullius  and  the  Comitia  Centuriata 
— The  relation  of  the  King's  Government  to  the  Comitiae — Overthrow  of  the 
Kingship  and  establishment  of  the  Patrician  Republic — The  Lex  Valeria — 
The  secession  of  the  Plebeians  and  the  Lex  Sacrata— The  Tribunes,  the  Trib- 
uneship  and  the  Comitia  Tributa— The  Lex  Publilia— The  First  Decem- 
virate  and  the  Twelve  Tables — The  Government,  the  Tribunes,  and  Civil 
Liberty — The  extension  of  the  city  and  Plebeian  discontent — The  participa- 
tion of  the  Comitia  Tributa  in  legislation — The  Lex  Licinia  and  the  eligibility 
of  the  Plebeians  to  the  Consulship — Full  legislative  power  of  the  Comitia 
Tributa  at  last  conceded — Rome  becoming  an  Empire — The  gradual  transfor- 
mation of  the  Roman  Constitution  under  the  influence  of  the  Conquests — 
Rule  of  the  Senate — The  decay  of  Roman  character — The  ruin  of  agriculture 
and  the  growth  of  the  urban  proletariat — Attempted  reforms  by  the  Gracchi 
— The  Consulship  of  Marius  and  the  Tribuneship  of  Drusus — The  Dictator- 
ship of  Sulla  and  the  downfall  of  the  Republican  Constitution — Pompey  and 
his  attempt  to  restore  the  Constitution — Pompey,  Crassus,  and  Caesar — The 
plans  and  movements  of  Caesar,  and  the  Government  established  by  him — 


CONTENTS 


The  assassination  of  Caesar  and  the  anarchy  following — Octavian  and  his 
Constitution — Augustus  Princeps — The  new  Imperial  system — Diocletian 
and  the  real  Roman  Imperium — The  downfall  of  Constitutional  Liberty  in 
the  Roman  system — The  appearance  of  Christianity  in  Rome — The  Chris- 
tians and  the  Imperial  Government — The  spread  of  Christianity;  its  social 
and  political  principles — The  Christian  communities  developing  into  the 
Christian  Church — The  persecutions  of  the  Christians — Trajan — Marcus 
Aurelius — Septimius  Severus — Decius — The  Church  organization  and 
power  after  250  A.  D. — Diocletian  and  the  final  persecutions — The  Edicts  of 
Toleration  and  the  establishment  of  the  Christian  Church  as  the  State 
Church  of  the  Empire — The  new  position  of  the  Church  as  a  public  corpora- 
tion, and  its  powers  of  intercession  and  asylum  in  behalf  of  Individual  Liberty 
— Individual  Liberty  under  the  protection  of  the  Church — The  power  of  the 
Church  over  the  Imperial  Government. 


III.    GERMANIA 73 

Germania,  the  original  home  of  freedom,  as  portrayed  by  Tacitus— The 
system  of  landownership — Social  distinctions — The  common  Freemen — The 
German  Nobles — Dependants— The  Slaves— The  Assemblies— The  Tribal 
Assembly  and  its  powers — The  Village  Assembly — The  Hundred  Assembly 
— The  Princes  and  their  Gefolge  or  retainers — The  functions  and  duties  of 
the  Princes — The  Kings  and  the  Princes  of  tribes — The  idea  of  Royalty — 
The  form  of  the  German  state — The  guarantee  of  Civil  Liberty  in  the  ancient 
German  state — Civil  Liberty  not  distinguished  from  participation  in  political 
power  in  the  ancient  German  system. 


IV.    THE  FRANKISH  KINGDOM 


82 


The  development  of  the  Ducal  office  and  power — Arminius — The  Royal 
office  and  power — Clojo  and  his  Salians — Merovius,  Childeric,  Clovis — 
Clovis  and  Syagrius — Syagrius  and  the  Emperor — The  rebellion  of  Syagrius 
and  the  loyalty  of  Clovis — Clovis  and  the  Church  in  Gaul — Clovis  defender 
of  the  orthodox  Church  in  Gaul  and  Roman  Proconsul — Establishment  of 
the  Kingly  office  and  tenure — Liberty  in  the  early  Prankish  Kingdom — The 
Church  as  the  defender  of  Liberty  in  the  early  Prankish  Kingdom — Liberty 
and  Aristocracy — The  land  system  of  the  Merovingians — The  struggle  be- 
tween the  Crown  and  the  Lords  over  the  land  question — The  origin  of  the 
system  of  Commendation— The  Counts  as  Manorial  Lords— Pippin  of 
Landen  and  the  Austrasian  Landlords — The  charter  of  Liberties  given  by 
Chlotaire  II,  in  615 — Individual  Liberty  and  Aristocratic  Government — The 
Vice-royalty  of  Dagobert  in  Austrasia— Dagobert  in  Neustria— The  death 
of  Dagobert  and  the  regime  of  the  Rois  Faineants — Individual  Liberty  and 
Aristocratic  Government — Conquest  of  Neustria  by  Austrasia;  and  the  rule 
of  Pippin  over  the  entire  Prankish  Kingdom. 


x  CONTENTS 

PAGE 

V.  THE  CAROLINGIAN  EMPIRE 94 

The  Holy  Roman  Empire  of  the  German  Nation — The  conditions  con- 
spiring for  the  creation  of  the  Carolingian  Empire— Growth  of  the  Manorial 
system — Invasion  of  the  Moslems  and  the  Saxons — The  Lombards  in  Italy 
and  the  growth  of  the  Roman  Patriarchate — The  policy  of  the  Carolings — 
The  Church  and  the  Army — The  Carolings  and  the  Roman  Bishop — The 
reclamation  of  state  domain  from  the  Church — The  Papacy  of  Rome;  its 
work  for  Civilization — The  Holy  Roman  Empire  and  its  great  work  for  Civil- 
ization— The  accession  of  the  Carolings — The  fate  of  Grimoald — The  Caro- 
lings made  Kings  by  divine  calling— The  Carolings  and  the  Roman  Patri- 
ciate— The  Bishop  of  Rome  and  the  States  of  the  Church — 'Charlemagne  and 
the  European  Empire — The  conference  between  King  and  Roman  Bishop  at 
Paderborn — The  coronation  of  Charles  as  Emperor  and  Augustus — The 
nature  of  the  new  creation — Sovereignty  and  Government — The  Carolingiau 
Administration;  the  Officials,  Dukes,  Counts,  Margraves,  Vicars — The  Cities 
and  Manorial  estates — The  Bishop  as  Count  in  a  City — The  Manorial  juris- 
diction— The  Carolingian  Assemblies — The  growth  of  the  Feudal  System  by 
Commendation — The  Emperor  the  real  lawgiver — The  Church  and  Individ- 
ual Liberty  in  the  Carolingian  system — Church  powers  or  Bishops'  powers 
in  Government — The  Bishops  as  Manorial  Lords — The  Missi  Dominici — 
The  powers  of  the  Missi — The  Missi  and  Individual  Immunity  from  arbi- 
trary Government. 

VI.  THE  ANGLO-SAXON  STATE 113 

The  Anglo-Saxons  in  England — The  political  customs  brought  by  them  to 
England — No  original  Church  restraint  on  secular  Government — The  Hep- 
tarchy— Internal  changes  under  the  Heptarchy — The  development  of  Royal 
Government — The  powers  of  the  King  and  the  Earldormen — The  Shire-moot 
and  Individual  Liberty— The  King's  Theyns— The  Witenagemots— The 
Assemblies  becoming  part  of  the  Government — The  conversion  of  the  Anglo- 
Saxon  Kingdoms  to  Christianity — Gregory  the  Great  and  Augustine — The 
conversion  of  Kent — The  Roman  Church  and  its  functions  in  England — 
The  Church  and  the  English  nation— The  Church  and  the  Royal  Power— The 
Church  broader  than  the  State  in  Anglo-Saxon  England — The  Church  be- 
coming Government — Absolutism  in  Anglo-Saxon  England — King  Alfred 
and  his  system  of  Government  and  Liberty — The  Fideles — The  Danish  in- 
vasion and  rule — Beginning  of  the  Feudal  System  in  England — The  adminis- 
trative system  of  the  Danes — The  Danes  and  the  demoralization  of  Royalty. 

VII.  THE  MIDDLE  AGES 126 

Definition  of  the  Middle  Ages — The  Feudal  System  and  the  Roman  Impe- 
rial system — The  early  allodial  land  tenure — The  original  composition  of  a 
Feudal  estate— The  Royal  Officials  and  the  Feudal  System— The  Counts— 
The  Dukes  and  Margraves — The  King  as  paramount  Feudal  Lord— Manorial 
jurisdiction — The  Feudal  System  first  organized  the  Country  as  distinguished 


CONTENTS 


from  the  City — The  weakening  of  the  Monarchy  by  the  Feudal  System — The 
reign  of  Louis  the  Pious  over  the  Prankish  Empire — The  overthrow  of  the 
Imperial  system  and  the  compact  of  Mersen — The  extinction  of  the  Caroling 
House  and  the  triumph  of  the  Feudatories — The  new  Kings  of  France,  Ger- 
many, and  Italy  chosen  by  the  Feudatories — Nature  of  the  New  Monarchy — 
The  King  as  Feudal  Lord— Duke  William  and  the  Feudal  System  in  England 
—The  Kingship  of  William  of  Normandy  in  England— The  Feudal  System 
and  the  Papacy — The  Papacy  historically  necessary — Charlemagne  and  the 
Bishop  of  Rome — The  Papacy  as  ecclesiastical  Imperium  with  a  states'-rights 
secular  policy — The  Church  the  truer  representative  of  the  People — Con- 
flict between  Church  and  State— The  divorce  case  of  Lothair  II— The 
Papal  power — The  Holy  Roman  Empire  of  the  German  Nation — Simony — 
Henry  III,  Hildebrand— Election  of  the  Pope  by  the  Cardinals— The  re- 
forms of  Hildebrand — Vicissitudes  of  Kingship,  Imperium,  and  Papacy — The 
Crusades  and  Church  reform — The  Concordat  of  Worms — The  Concordat 
and  historical  progress — Barbarossa  and  the  Papacy — Alexander  III — Final 
triumph  of  the  Pope  over  the  Emperor,  Henry  VI  and  Innocent  IV — The 
Papacy  and  the  Church  in  France — Kings  Philip  Augustus  and  Louis  IX  and 
the  Jurists — The  Parliament  of  Paris — The  Roman  law  and  the  claims  of 
the  Papacy — The  Church  in  England  and  the  Norman  King — The  Church 
triumphing  over  the  King  in  England — The  Constitutions  of  Clarendon — 
Becket  and  the  King— The  Papacy  fully  established  in  England— The  Eng- 
lish Parliament — The  Classes  of  the  Middle  Ages  and  the  people — The  psy- 
chologic character  of  the  Middle  Ages — The  faults  in  the  Logic  of  the  Middle 
Ages — The  Feudal  System  in  final  form — Failure  of  the  Feudal  System  to 
provide  any  means  for  the  protection  of  Individual  Liberty — The  Church  no 
sufficient  defender  of  Civil  Liberty — The  Church  as  Government  more  des- 
potic than  the  Secular  Power — The  despotism  of  the  Church,  however,  re- 
ligious and,  when  religion  was  not  concerned,  benevolent. 

VIII.    THE  REVIVAL  OF  THE  MONARCHY 157 

The  development  of  the  Free  Cities — Royal  incorporation  of  Towns — The 
Lawyers  and  the  Monarchy — The  King  and  the  Free  City — Rise  of  the  idea 
of  Sovereign  and  Subject — The  approach  of  the  King  and  the  Cities  to  each 
other — The  Cities  and  the  National  Monarchy  in  Spain.  The  Holy  Herman- 
dad — The  City  and  the  development  of  public  opinion — The  Renaissance 
and  the  New  Monarchy — The  Renaissance  in  its  narrower  sense — The  Re- 
naissance in  Italy,  Francesco  Petrarcha — Boccaccio  and  the  revival  of  Greek 
learning — Filefo,  Poggio,  Guarino,  Aurispa,  Reuchlin,  Erasmus,  Lope  de 
Vega,  and  others — Printing  and  the  famous  Aldine,  Froben,  and  Etiennes 
presses — The  forerunners  of  the  Renaissance,  Roger  Bacon,  Albertus  Mag- 
nus, Bonaventura,  Thomas  Aquinas,  Dante,  Abelard — The  movement  first 
literary,  then  social  and  political — The  tyrannies  of  the  Visconti,  the  Sforzas, 
the  Foscari,  the  De  Medici,  and  the  Aragonesi— The  antidotes  of  the  Renais- 
sance— The  Reformation  from  four  fundamental  view-points — The  morals 
and  discipline  of  the  Clergy— The  Councils  of  Pisa,  Constance,  and  Bale  and 


xii  CONTENTS 


the  discipline  of  the  Clergy — Some  improvement  in  the  conduct  of  the  Clergy 
— The  demands  of  the  Reformation  in  regard  to  the  morals  of  the  Clergy — 
The  demands  of  the  Reformation  in  regard  to  Theological  Doctrines — The 
Reformation  and  Government,  civil  and  ecclesiastical — The  divine  origin  of 
the  Papacy  and  its  temporal  power  disputed — The  excesses  of  the  Reforma- 
tion and  the  Jesuit  Reaction — The  National  Church  idea — The  growing 
necessity  of  a  revival  of  Royal  power — The  large  increase  of  the  Royal 
power  in  the  communities  renouncing  entirely  the  Pope  and  the  Roman 
Curia — The  Reformation  in  England — The  question  of  Royal  divorce — 
The  King  as  the  Head  of  the  Church— The  Reformation  and  the  Royal 
power  in  the  Scandinavian  states,  Denmark,  the  Netherlands,  the  German 
principalities,  and  Switzerland — The  Thirty  Years'  War  and  the  Reformation 
— The  preparation  for  the  New  Monarchies — The  Absolute  Monarchy  in 
Spain— The  league  of  the  Cities  of  Castile— The  King  and  the  Orders  of 
Knighthood — The  nationalizing  of  the  Church  in  Spain — The  Inquisition — 
The  Spanish  Fueros — The  Justiciar — The  destruction  of  the  Justiciar  and 
the  completion  of  Absolutism — The  Absolute  Monarchy  in  France — Saint 
Louis,  the  lawyer-King — The  Judicial  Parliaments — The  Royal  placet — 
— Philip  le  Bel— The  registration  of  law  by  the  Parliament  of  Paris — Con- 
flict between  Philip  le  Bel  and  Pope  Boniface  VIII— The  Etats-G6n6raux 
of  1302 — The  Bull  "Unam  Sanctam" — The  Papal  residence  transferred  from 
Rome  to  Avignon— The  destruction  of  the  Templars— The  death  of  Philip 
le  Bel  and  the  accession  of  the  Valois — The  hundred  years'  war — Creation 
of  the  French  standing  Army — The  Pragmatic  Sanction  of  Bourges — Louis 
XI,  his  policy — The  completion  of  Absolutism  in  France — Development  of 
Absolutism  in  England — The  Wars  of  the  Roses — The  triumph  of  Lancaster, 
Henry  VII — The  subordination  of  Parliament  to  the  Royal  power — The 
Tudor  Absolutism — Wolsey's  policy  and  fate — Thomas  Cromwell  and  the 
Tudor  Despotism — Cromwell's  management  of  Parliament — The  Act  of 
Supremacy — Development  of  the  Monarchy  in  Germany  and  Italy — A 
German  or  Italian  national  Monarchy  then  impossible — The  Prussian 
Monarchy — The  Monarchy  of  Frederick  the  Great — Nature  of  Prussian 
Absolutism — The  partial  success  of  Absolutism  in  South  Germany  and  Aus- 
tria— The  Duchy  of  Milan  and  the  Visconti  and  Sforzas — Venice,  the  suc- 
cessful aristocratic  Republic — The  Florentine  Republic  and  the  Duchy  of 
Tuscany— The  Albizzi  and  the  Medici— The  politics  of  the  Medici  and  their 
success — The  Absolute  Monarchy  of  the  Aragonesi  in  Naples — Absolutism  in 
the  States  of  the  Church— The  Absolute  Monarchy  and  the  House  of  Vasa 
in  Sweden — The  Absolute  Monarchy  in  Norway-Denmark — Absolutism  in 
Russia — Peter  the  Great  and  the  Jure-Divino  Military  Monarchy — Failure 
of  the  New  Monarchies  to  solve  the  problem  of  the  reconciliation  of  Govern- 
ment and  Liberty 

IX.    THE  REVOLUTIONS 201 

Opposition  in  principle  of  the  Renaissance  and  the  Reformation  to  the 
Absolute  Monarchy — Difference  between  the  opposition  of  the  Renaissance 


CONTENTS  xiii 


and  the  Reformation  in  its  results — The  Revolution  in  England  and  the 
policy  of  James  I — The  Parliament  of  1614  and  the  appearance  of  Eliot,  Pym, 
and  Wentworth — Quarrel  between  the  King  and  the  Judges — Private  char- 
acter of  James — The  Parliament  of  1621  and  the  King — The  Spanish  contro- 
versy, the  death  of  the  King  and  the  accession  of  Charles  I — Beginning  of  the 
struggle  between  Charles  and  the  Parliament — Eliot  and  Buckingham — 
— Benevolences,  forced  loans,  and  the  Rochelle  disaster — The  Parliament 
of  1628  and  the  Petition  of  Right — The  Assassination  of  Buckingham — The 
Dissolution  of  the  Parliament  of  1629 — The  plan  of  Wentworth  and  Laud 
for  Absolute  Government — The  independence  of  the  Royal  Exchequer — 
Wentworth  and  his  plans  for  Absolutism  in  Ireland — Laud  and  the  ecclesi- 
astical supremacy  of  the  Crown — Episcopal  Government  repudiated  in  Scot- 
land and  arbitrary  taxation  opposed  by  Hampden — The  King  upheld  by  the 
Courts  but  resisted  by  the  Nation — The  Scotch  Covenant,  the  Short  Parlia- 
ment and  its  dissolution — The  Long  Parliament  of  1640  and  the  advent  of 
Pym — Pym's  theory  of  the  relation  of  the  public  powers — Acts  of  the  Long 
Parliament  undoing  Absolutism — The  King  and  the  Scots — The  fall  of 
Strafford  and  the  condition  of  Ireland — The  attempt  of  the  Commons  to 
expel  the  Bishops  from  the  House  of  Lords — Civil  War — Edgehill — The 
death  of  Pym — Marston  Moor  and  the  advent  of  Oliver  Cromwell — Crom- 
well's policy — Naseby — Cromwell  and  the  Parliament,  and  the  Army  and 
the  Parliament — The  King  and  the  Army  leaders — The  movements  of  the 
King — Wigan  and  Warrington — The  Council  of  Officers  of  the  Army  and 
its  demand — The  Commons'  declaration  of  Sovereignty — Execution  of  the 
King — The  Army,  the  Council  of  Officers  and  the  Commons — The  forced 
dissolution  of  the  Rump  Parliament — Praise-God-Barebones  Parliament — 
The  Instrument  of  Government — The  Parliament  of  1654 — Cromwell  and 
the  Parliament — Dissolution  in  January,  1655 — The  Tyranny  of  Cromwell— 
The  Parliament  of  1657 — The  Protector — Restoration  of  the  House  of  Lords 
— Death  of  Cromwell  and  the  succession  of  his  son  Richard — Richard  Crom- 
well and  the  Parliament  and  the  Council  of  Army  Officers— The  restoration 
of  the  King  and  the  ancient  Constitution — The  Convention  and  its  work — 
The  election,  1661,  and  the  triumph  of  the  Cavaliers — Restoration  of  the 
State  Church— The  King  and  the  Act  of  Uniformity— The  Established 
Church,  the  King  and  religious  toleration— The  policy  of  the  King  for  the 
restoration  of  Roman  Catholicism — Gates  and  Bedloe — The  Bill  for  the  ex- 
clusion of  James — The  accession  of  James  II  to  the  throne — The  reactionary 
movements  of  the  King  and  the  revolt  of  the  Parliament— The  call  of  Wil- 
liam of  Orange  and  his  accession  to  the  throne — The  Constitutional  Conven- 
tion of  1689— The  Declaration  of  Rights— The  Bill  of  Rights— The  Sover- 
eignty of  Parliament  the  grand  result  of  the  Revolution— The  Kings'  Min- 
isters and  the  Parliament— The  Earl  of  Sunderland  and  the  creation  of  the 
Ministry — The  culmination  of  Absolutism  in  France  by  the  abolition  of  the 
Parliament  of  Paris  in  1771— Recall  of  the  Parliament  by  Louis  XVI— The 
disordered  finances  and  the  proposed  reforms  of  Turgot  and  Necker — The 
results  of  France's  participation  in  the  War  of  the  American  Revolution — 
Calonne  and  the  Assembly  of  the  Notables— The  Notables,  the  Parliament 


xiv  CONTENTS 


of  Paris,  and  the  Etats-Ge"n6raux— The  summoning  of  the  Etats-Ge'ne'raux 
— Its  Constitution — The  half-way  measures  of  the  King  in  regard  to  the 
question  of  the  Constitution  and  procedure  of  this  body — The  Third  Estate 
declares  itself  the  representative  of  the  Nation — Consolidation  of  the  Estates 
into  the  National  Assembly — This  body  assumes  Constituent  power,  the 
Sovereignty — Forms  the  Constitution,  with  a  Bill  of  Rights  but  no  means  of 
maintaining  it  against  the  powers  of  the  Legislature — Radical  course  of  the 
Revolution — The  flight,  capture,  and  imprisonment  of  the  King — The  com- 
pletion of  the  Constitution  of  1791 — The  revised  Constitution  still  provided 
no  means  for  maintaining  Individual  Liberty — The  radical  character  of  the 
first  Legislature  under  the  new  Constitution — The  imprisonment  of  the 
Royal  Family  and  the  Convent — The  Tyranny  of  Danton,  Robespierre,  and 
Marat — The  Constitution  of  1795 — The  Consulate  of  Bonaparte — The  Im- 
perium  of  Bonaparte  and  Individual  Liberty — The  restoration  of  the  Bour- 
bons and  Individual  Liberty — The  Revolution  of  1830 — The  Constitution 
of  1830  and  Individual  Liberty— The  Revolution  of  1848— The  Constitution 
of  1848  and  Individual  Liberty — The  Constitution  of  1851  and  Individual 
Liberty — The  overthrow  of  the  Second  Empire — The  Revolution  in  the 
Netherlands,  the  Dutch  Republic,  and  Switzerland— The  Revolution  and  the 
Napoleonic  system  in  Italy — Equality  but  not  Liberty— The  Confederation 
of  the  Rhine — Bonaparte  in  Spain  and  Portugal — The  Restoration  in  Europe 
generally — The  reappearance  of  the  Revolution  in  1820,  1830,  and  1848, 
everywhere — The  Holy  Alliance — The  results  of  the  Revolution — Consti- 
tutional progress  from  1820  to  1848  throughout  Europe — The  reaction  of 
1850 — The  Crimean  War  and  its  results  regarding  the  transformation  of  the 
European  states— The  Spanish  Revolution  of  1867— The  latest  Revolution 
in  Portugal  and  the  establishment  of  the  Republic — The  Franco-Prussian 
War  of  1870  and  the  Constitution  of  the  German  Empire — The  Russo-Turk- 
ish  War  of  1878  and  the  independence  of  the  Balkan  states— The  constitu- 
tionalizing  of  Russia — Separation  of  Norway  and  Sweden — The  political 
principles  evolved  by  the  course  of  the  Revolution — The  significance  of  the 
Nation  politically — The  failure  of  the  Revolution  in  Europe  to  solve  the 
problem  of  the  reconciliation  of  Government  and  Liberty — Differences  be- 
tween Teuton  and  Latin  in  the  philosophy  of  the  Revolution. 


X.    THE  PRESENT  CONSTITUTIONS  OF  THE  EUROPEAN 

STATES 253 

The  European  states  and  Constitutions  of  the  present  day — The  question 
of  the  Sovereign  power  in  these  modern  Constitutions — The  failure  of  nine 
of  the  twenty-one  Constitutions  to  fulfil  this  primal  condition  in  their  origin 
— The  organization  of  the  Amending  or  Revising  Sovereignty — England, 
Hungary,  Italy,  Spain — Only  four  of  the  European  states,  viz:  Bulgaria, 
France,  Greece,  and  Switzerland,  contain  the  independent  organization  of  the 
power  for  Constitutional  revision — Bulgaria — Greece — France — Switzerland 
— The  Constitution  of  Switzerland,  the  only  one  offering  a  complete  solution 


CONTENTS  xv 

PAGE 

to  the  question  of  an  independent  organization  of  the  sovereign  power — The 
Bill  of  Rights  in  the  present  Constitutions  of  the  European  states— The 
failure  of  certain  states  in  this  respect,  England,  Hungary — The  German 
Empire  and  Austria — The  content  of  Individual  Immunity  or  the  Civil 
Right— The  Immunity  in  regard  to  Person— The  Immunity  in  regard  to 
Property — The  Immunity  in  regard  to  Thought  and  Belief — The  Bills  of 
Rights  in  the  Constitutions  of  Bulgaria,  Belgium,  Denmark,  Greece,  Italy, 
Luxemburg,  Montenegro,  Netherlands,  Norway,  Portugal,  Roumania,  Russia, 
Switzerland,  Servia,  Sweden  and  Spain— the  Right  of  Assembly— Also  the 
Right  of  Petition — Also  the  Right  of  Association,  except  in  that  of  Italy — Also 
the  Inviolability  of  the  Home — Further  rights  of  a  Civil  nature — The  Con- 
stitutional guarantees  of  Individual  Liberty — The  Legislature  the  only  guar- 
antee in  the  modern  Constitutions  of  Europe  of  Individual  Liberty — The 
legislative  power  of  Impeachment  of  Officials  in  the  European  states — The 
Belgian  principle — The  Bulgarian  law — The  Danish  law — The  German  law — 
The  French  law — The  Greek  law — The  Italian  law — Luxemburg — Monte- 
negro— Norway — Austro-Hungary — Portugal — Roumania — Russia — Servia 
—Sweden— Spain— Switzerland — The  practise  in  England  and  Hungary — 
The  original  position  of  the  Legislature — The  original  structure  of  the  Legis- 
lature as  a  guarantor  of  Liberty — The  Bicameral  system  of  the  Legislature — 
Exceptions  to  it  few  and  insignificant — Parity  of  Power  in  the  two  Chambers 
— Changes  in  this  principle — Imparity  of  Power  and  the  Budget — The  Army 
Bill — The  general  initiation  of  Law — The  qualifications  for  the  suffrage — 
Changes  in  the  same — The  European  Constitutions  generally  follow  the 
principle  of  making  the  Upper  Chamber  more  conservative  than  the  Lower — 
The  variety  of  tenure  in  the  members  of  the  two  Houses  of  the  Legislature 
and  also  in  the  members  of  the  Upper  House — The  British  House  of  Lords—- 
The Hungarian  House  of  Magnates — The  Austrian  House  of  Lords — The 
Spanish  House  of  Lords — The  Upper  Houses  of  the  German  Empire,  Russia, 
and  Denmark — The  Upper  Legislative  Houses  of  Greece  and  Italy — The 
Senates  of  Belgium,  France,  Norway,  Netherlands,  Portugal,  Roumania, 
Sweden,  and  Switzerland — The  qualifications  of  eligibility  to  the  member- 
ship of  the  Upper  Chamber — Uninstructed  representation — The  structure 
of  the  Legislature  as  a  guarantor  of  Civil  Liberty — The  course  of  develop- 
ment in  Legislative  Eligibility  and  Suffrage  qualifications — The  Legislature 
and  the  Political  Society — The  present  Constitutions  of  the  European  states 
do  not  solve  the  problem  of  the  reconciliation  of  Government  and  Liberty. 


BOOK  III— THE  EFFORT  OF  AMERICA 


THE  UNITED  STATES  OF  NORTH  AMERICA  ....     288 

The  American  states  and  the  problem  of  Government  with  Liberty — The 
United  States  of  North  America — The  difficulty  of  tracing  the  development 
of  a  Sovereignty — The  English  Crown  and  the  North  American  Colonies — 


xvi  CONTENTS 


The  character  of  the  Colonial  Charters  and  Patents — The  Colonies  under 
British  Law — Geographical  and  ethnical  conditions  in  these  Colonies — The 
growth  of  the  Colonies  and  their  approach  to  each  other — The  Committees 
of  Correspondence — The  Revolutionary  party — The  Colonial  Governments 
and  the  Revolution — The  Port  Bill  and  Regulating  Act  of  1774 — The  call  of 
the  General  Congress — The  First  Continental  Congress — The  Nature  of  the 
First  Continental  Congress — The  theory  of  the  relation  of  the  Colonies  to 
the  motherland  as  advanced  by  the  Continental  Congress — The  Second 
Continental  Congress — The  Second  Continental  Congress  as  a  sovereign 
body,  and  as  the  ordinary  Legislature  in  a  National  Government — The 
Committee  on  the  Constitution  and  its  report — States' -rights  developments 
between  July,  1776,  and  November,  1777— The  Articles  of  Confederation  and 
the  problem  of  Government  with  Liberty — The  experience  under  the  Articles 
of  Confederation — Resolution  of  the  Confederate  Congress  of  February  21, 
1787 — The  assembly  of  the  Constitutional  Convention  of  1787 — The  two 
difficulties  which  confronted  the  Convention  at  the  outset — The  resolution 
of  the  Confederate  Congress  for  putting  the  new  Constitution  into  operation 
—The  rejection  of  the  Constitution  by  the  State  of  Rhode  Island— Its  final 
adoption  by  all — The  first  ten  amendments — The  fulfilment  of  the  first  re- 
quirement for  the  solution  of  the  problem  of  Government  with  Liberty  by  the 
new  Constitution,  both  in  its  original  construction  and  in  its  provision  for 
subsequent  development — The  sovereignty  still  not  completely  commanding 
as  organized  in  the  United  States  Constitution — The  content  of  the  Civil 
Right  in  the  Constitution  of  the  United  States— The  original  defect  of  the 
national  Bill  of  Rights — The  cure  of  this  defect  by  the  thirteenth  and  four- 
teenth amendments — The  guarantees  of  Civil  Liberty — The  structure  of  the 
Government,  first  as  Federal  Government — The  Elective  character  of  the 
Government  of  the  United  States  as  a  guarantee  of  Civil  Liberty — The  dis- 
tribution of  Power  as  a  defense  of  Individual  Immunity — The  check-and- 
balance  system  in  proper  form  and  real  force — The  independent  Judiciary 
the  most  effective  guarantee  of  Individual  Immunity  from  the  Absolutism  of 
Government — The  Constitutional  provisions  relative  to  the  protection  of  In- 
dividual Liberty  by  the  Judicial  Power — The  purpose  of  these  provisions — 
The  means  of  executing  this  purpose — The  Constitutional  Immunities  of  the 
Individual  the  supreme  law  of  the  land — The  origin  of  the  principle  of  the 
Judicial  Protection  of  the  Immunities  of  the  Individual — The  interpretation 
of  the  meaning  of  this  system  by  contemporaneous  reports — The  cause  of  the 
doubts  subsequently  arising  as  to  the  purpose  and  meaning  of  the  scheme — 
The  explanation  of  the  system  in  the  case  of  Marbury  vs.  Madison — The 
reasoning  in  Marbury  vs.  Madison  sustained  by  express  Constitutional  pro- 
vision— The  two  things  necessary  to  give  the  Judiciary  the  power  to  fulfil  the 
duty  of  guarantor  of  the  Immunity  of  the  Individual — The  New  England 
movement  of  1812-15  in  regard  to  the  ultimate  interpretation  of  law  in  the 
political  system  of  the  United  States — The  position  of  the  Judicial  power 
threatened  in  the  contest  between  Georgia  and  the  United  States  over  the 
Indian  question— The  case  of  Worcester  vs.  Georgia— The  Dred  Scott  Case— 
The  decision  in  the  Courts  of  the  State  of  Missouri — The  case  in  the  Circuit 


CONTENTS  xvii 

Court  of  the  United  States — The  case  in  the  Supreme  Court  of  the  United 
States — The  decision  and  the  obiter  dictum  of  the  Supreme  Court  of  the 
United  States — The  position  of  the  Court  as  supreme  interpreter  of  the  Con- 
stitution shaken  by  the  obiter  dictum  in  the  Dred  Scott  Case — The  Merry- 
man  Case — The  re-establishment  of  the  Judicial  power  and  supremacy  after 
the  Civil  War  in  the  Case  of  ex  parte  Milligan— The  period  of  Reconstruction 
and  the  Court — The  case  of  Mississippi  vs.  Johnson — The  case  of  Georgia 
vs.  Stanton — The  McCardle  Case — The  extension  of  the  realm  of  Individual 
Immunity  against  governmental  power  by  the  thirteenth  and  fourteenth 
amendments — The  distinction  between  Individual  and  Person  in  these 
amendments — The  recent  change  of  public  opinion  concerning  Government 
and  Liberty — The  beginning  of  the  change  following  the  Spanish-American 
War  of  1898. 


II.    THE  PRESENT  CONSTITUTIONS  or  THE  STATES  OF 

SOUTH  AMERICA 327 

The  Constitutions  of  the  South  American  states  follow  the  model  of  the 
French  Revolution — The  occupation  of  Spain  and  Portugal  by  Napoleon  the 
occasion  of  the  independence  of  their  American  colonies — The  sovereignty 
in  the  South  American  states — Argentina  and  Paraguay — Bolivia  and  Co- 
lombia— Brazil — Chili — Ecuador  and  Peru — Uruguay — Venezuela — The  Ar- 
gentine Union,  the  only  South  American  state  which  makes  the  distinction 
between  Sovereignty  and  Government — The  Bill  of  Rights  or  Immunities  in 
the  South  American  Constitutions — In  respect  to  the  contents  of  the  Bill  of 
Rights  the  South  American  Constitutions  fairly  complete — The  guarantees 
of  Civil  Liberty  in  the  South  American  Constitutions — The  structure  of  the 
Governments  created  by  them — Argentine,  Brazil,  and  Venezuela  Federal 
systems — The  larger  legislative  power  of  the  National  Legislatures  of  these 
states  than  that  exercised  by  the  Congress  of  the  United  States — The  dis- 
tribution of  governmental  powers  in  the  South  American  states — A  greater 
tendency  to  Parliamentarism  than  in  the  Government  of  the  United  States — 
The  check-and-balance  system  in  Brazil  and  Uruguay — The  Presidential 
veto  in  the  South  American  states — The  bicameral  system  in  the  Legisla- 
tures of  the  South  American  states — The  length  of  legislative  terms — Parity 
of  power  only  in  the  legislative  Houses  of  Ecuador  and  Peru — The  novel 
means  of  the  South  American  legislatures,  whereby  one  House  may  over- 
come the  opposition  of  the  other — The  election  methods  of  the  South  Ameri- 
can states — Bolivia,  Brazil,  Ecuador,  and  Peru — Argentina — Chili  and 
Paraguay — Colombia — Uruguay — Venezuela — The  position  of  the  Judiciary 
in  the  South  American  states— Argentina— Brazil,  Colombia — Peru- 
Uruguay — Venezuela — Bolivia,  Chili,  Ecuador,  Paraguay — The  advance 
of  six  of  the  South  American  states  over  the  European  states  in  the  Judicial 
guarantee  of  Civil  Liberty — The  force  to  work  the  Constitutions  rather  than 
the  character  of  the  Constitutions  is  what  is  lacking — The  Argentine  Re- 
public the  light  of  South  America. 


xviii  CONTENTS 

PAGE 

III.  MEXICO  AND  CENTRAL  AMERICA 340 

The  Mexican  Constitution  of  1857 — The  sovereignty  in  the  Mexican 
Constitution — The  Bill  of  Rights  of  the  Mexican  Constitution — The  guaran- 
tees of  Civil  Liberty  in  the  Mexican  Constitution — Federal  system — Separa- 
tion of  powers — Election  of  Officials  and  Members — Impeachment — Presi- 
dential initiative  and  veto — Parity  of  powers  in  the  legislative  Chambers — 
The  Judicial  guarantee  of  Individual  Liberty  in  the  Mexican  Constitution — 
— The  cause  of  so  much  misgovernment  in  Mexico — The  character  of  the 
Mexican  people  or  population — The  Central  American  states  and  a  Central 
American  union — The  question  of  the  Sovereignty  in  the  Constitutions  of  the 
Central  American  states — The  Immunities  of  the  Individual  in  the  Central 
American  states — The  guarantees  of  Civil  Liberty  in  the  Central  American 
Constitutions — The  separation  of  powers  and  the  relation  of  the  Legislature 
to  the  Executive — The  Executive — The  structure  and  powers  of  the  Legis- 
lature in  the  Central  American  states — The  Judicial  guarantee  of  Civil  Lib- 
erty in  the  Central  American  states — The  existence  of  such  guarantee  only 
in  the  states  of  Nicaragua  and  Panama — Character  of  the  inhabitants  of 
these  states. 

IV.  THE  STATES  OF  THE  WEST  INDIAN  ARCHIPELAGO  .     349 

The  states  of  Cuba,  Hayti,  and  Santo  Domingo  and  their  Constitutions — 
The  question  of  Sovereignty  in  the  Cuban  Constitution — The  Bill  of  Rights 
in  the  Cuban  Constitution — The  Construction  of  the  Government  in  the 
Cuban  Constitution — The  President  and  his  powers — The  Legislature  and 
its  powers — The  Judiciary  as  a  guarantor  of  Individual  Liberty  in  the  Cuban 
Constitution — The  protectorate  of  the  United  States  of  North  America  over 
Cuba — The  Constitution  of  Hayti  and  its  similarity  to  that  of  the  French  Re- 
public— Does  not  solve  the  question  of  Sovereignty — The  Bill  of  Rights  in 
the  Haytian  instrument — The  structure  of  the  Haytian  Government — The 
President  and  his  Secretaries  of  State— The  Legislature— The  uncertainty  of 
the  Judicial  defense  of  Civil  Liberty — The  Santo  Domingo  instrument — The 
Bill  of  Rights — The  means  of  its  enforcement — The  Construction  of  the 
Government — The  President  and  his  Secretaries  of  State;  his  powers  and  re- 
sponsibilities—The Legislature— The  Judicial  guarantee  of  Civil  Liberty 
in  the  Dominican  Constitution — Comparison  of  the  American  Constitutions 
with  the  European — Characteristics  of  the  inhabitants  of  the  states  of  South 
and  Central  America,  of  Mexico  and  the  West  Indian  states— Brazil— Bolivia 
— Colombia— Ecuador— Paraguay— Peru— Venezuela— The  Central  Amer- 
can  states — Mexico — Cuba — These  populations  chiefly  Indian  and  European 
Constitutions  a  misfit  for  them. 

V.  THE  NEW  UNITED  STATES  OF  NORTH  AMERICA  .     .     358 

Government  and  Individual  Liberty  in  the  United  States  of  North  Amer- 
ica between  1868  and  1898— The  turn  of  1898 — War  and  Expansion— Terri- 


CONTENTS  xix 

tonal  Government  under  the  Constitution  before  1898 — The  Dred  Scott  Case 
and  the  government  of  the  Territories — The  annexation  of  the  Hawaiian 
Islands  and  the  conquest  of  the  Philippines  and  Porto  Rico  as  affecting 
Individual  Liberty — The  Customs  Act  of  Congress  and  the  Act  in  reference 
to  Judicial  procedure  for  the  annexed  territories — The  decisions  of  the  Su- 
preme Court  upholding  these  Acts — The  principle  of  these  decisions — The 
embarrassment  of  the  question — The  effect  of  unlimited  power  in  one  part  of 
a  Constitution  over  the  other  parts — The  differences  of  opinion  among  the 
Justices — The  spread  of  the  taint  of  Absolutism — The  growth  of  Corporations 
in  the  United  States  after  1890 — The  nature  of  a  private  Corporation — The 
exercise  of  increasing  Government  control  over  Corporations — The  Excise  on 
Corporations — The  Excise  and  the  Income  Tax — President's  veto  on  the 
Excise  on  Individuals — Suggestion  of  amending  the  Constitution  in  reference 
to  an  Income  Tax — The  sixteenth  amendment  to  the  Constitution  of  the 
United  States — Congress  has  now  unlimited  power  to  take  the  property  of 
the  Individual  through  an  Income  Tax — The  nature  of  genuine  Constitu- 
tional Government — Representation  and  Limitation — The  Income  Tax  of 
1913  levied  by  Congress  under  the  sixteenth  amendment — Arbitrary  and 
discriminatory  character  of  the  Act — The  Judicial  power  and  the  Act — 
The  order  of  Authority— The  new  Political  system  of  the  United  States — 
The  characteristics  of  the  people  of  the  United  States— The  spectre  of  Caesar 
— The  readjustment  of  the  line  between  Government  and  Liberty  in  the 
system  of  the  United  States  since  1898 — Initiative,  Referendum,  and  Recall 
— The  distinction  between  the  people  as  Sovereign  and  as  Government — 
"The  Mob  of  the  Forum"— The  Referendum  demoralizing— The  Recall  and 
weak  administration  of  Government — The  Judges  and  the  Recall — The  re- 
call of  Judicial  decisions — These  nostrums  no  cure  for  the  disease  of  govern- 
mental Absolutism — Retrogression  in  the  last  twenty  years — The  path  of 
true  progress — Government  and  social  uplift — The  expansion  of  Govern- 
ment and  the  deterioration  of  National  Character — The  effect  of  the  growth 
of  Government  in  a  Republic — The  dangers  of  a  Republic  with  unlimited 
Government. 

INDEX 385 


BOOK  I 

ASIA  AND  AFRICA 
CHAPTER  I 

THE  EFFORT  OF  ASIA  TO  SOLVE  THIS  PROBLEM 

IT  has  not  escaped  the  observation  of  deep  thinkers  that 
the  genius  of  Asia  has  been  religious,  rather  than  political, 
while  that  of  Europe  has  been  predominantly  political. 
Asia  has  originated,  with  the  exception  perhaps  of  Druid- 
ism,  all  the  great  religions  of  the  world;  while  Europe  and 
her  offspring,  the  Americas,  have  originated  all  the  great 
states  of  the  world.  The  result  of  this  psychological  char- 
acter has  been  that  almost  all  the  Asiatic  states  must  be 
classed  as  theocracies  or  as  despotisms  based  upon  the 
theocratic  principle.  Now,  such  states  sacrifice  Liberty  to 
Government,  and  do  not  even  recognize  with  any  clear- 
ness the  existence  of  the  problem  of  the  reconciliation  of 
Government  with  Liberty.  The  study  of  the  Asiatic  states 
cannot,  therefore,  be  of  much  service  in  elucidating  the 
subject  which  we  have  set  before  ourselves  in  this  work. 
Nevertheless  we  can,  with  careful  study,  perceive,  in  some 
of  the  Asiatic  states,  a  certain  appreciation  of  this  prob- 
lem, and  a  certain  effort  to  meet  it. 

The  Continent  of  Asia  contains  some  seventeen  and  one- 
half  million  square  miles  of  territory  inhabited  by  about 
one  thousand  millions  of  men.  One-half  of  this  territory 
and  one- third  of  this  population,  speaking  'roughly,  are 


2  GOVERNMENT  AND  LIBERTY 

subject  to  two  great  European  states,  viz.:  Great  Britain 
and  Russia.  All  of  this  we  leave,  of  course,  out  of  con- 
sideration in  the  inquiry  regarding  the  contribution  of  Asia 
to  the  solution  of  our  problem.  On  the  other  half  of  its 
territory  and  among  the  other  two-thirds  of  its  population, 
ten  sovereign  and  independent  states  exist  to-day,  viz.: 
Afghanistan,  Arabia,  Bhotan,  China,  Japan,  Nepal,  Oman, 
Persia,  Siam,  and  Turkey.  Of  these  ten,  only  four  have 
placed  any  limitations  upon  despotic  Government  deserv- 
ing mention,  that  is,  only  four  have  contributed  anything 
toward  the  solution  of  our  problem.  These  are  China, 
Japan,  Persia,  and  Turkey. 

First  and  foremost  among  these  four  is  China,  the  oldest 
of  them  all,  the  largest  and  the  one  which  has  held  itself 
freest  from  foreign  influence  down  to  the  most  modern 
period  of  history.  The  basis  of  China's  most  ancient  po- 
litical system  was  a  code  of  morals  rather  than,  as  in  the 
case  of  most  Asiatic  states,  a  religion.  That  made  a  very 
wide  difference  between  China  and,  we  will  say,  India 
from  the  very  start.  That  established  the  state  upon  a 
human,  instead  of  a  divine,  basis  and  opened  the  way  for 
the  principle  of  a  limitation  upon  governmental  power  by 
human  reason  and  will. 

The  political  history  of  China  begins,  so  far  as  we  have 
any  accurate  knowledge  of  it,  some  twenty-three  centuries 
before  the  Christian  era.  The  Emperor  Chun  appears  to 
have  begun  in  this  period  the  political  organization  of  that 
part  of  China  which  became  the  nucleus  of  the  great  Em- 
pire. For  something  more  than  a  thousand  years  his  suc- 
cessors carried  forward  his  work,  developing  a  more  and 
more  despotic  power  in  the  Emperor  and  the  devolution  of 
this  power  by  hereditary  right,  and  at  the  same  time  lay- 
ing the  foundation  for  a  feudal  system  by  trusting  the 


ASIA  AND  AFRICA  3 

administration  of  the  provinces  and  districts  of  the  Empire 
to  officials,  whose  duty  to  the  Emperor  was  the  rendering 
of  military  service  and  the  payment  of  tribute,  and  whose 
powers  in  their  provinces  and  districts  were  undefined  and 
unlimited.  Naturally,  these  officials  also  gradually  de- 
veloped the  principle  of  hereditary  right  in  the  Govern- 
ment of  their  respective  provinces  or  districts;  and  the 
first  clash  between  their  claims  and  the  Emperor's  asser- 
tion of  sole  authority  ended  in  the  revolution  of  the  eleventh 
century  before  the  Christian  era,  when  one  of  the  great 
feudal  lords,  Won  Wang,  Prince  of  Tchu,  overthrew  the 
Emperor,  the  last  of  the  second  or  Chang  dynasty,  and 
assumed  the  Imperial  power  himself. 

Under  the  Won  Wang  dynasty  China  became  in  theory 
as  well  as  fact  a  feudal  system,  and  while  it  prospered  and 
developed  in  many  ways,  it  nevertheless  followed  the  in- 
evitable course  of  the  feudal  system  toward  anarchy  and 
disruption.  It  took  China,  however,  some  three  hundred 
years  to  reach  this  extreme  final  result.  It  was  about  two 
hundred  and  fifty  years  before  the  Christian  era  that  a 
great  feudal  Prince,  Tsin-Chi-Hoang-Ti,  not  only  deposed 
the  Won  Wang  Imperial  dynasty  but  overthrew  the  inde- 
pendence and  power  of  the  feudal  Princes  and  restored  the 
unity  of  the  Empire  under  the  sovereignty  and  sole  govern- 
mental power  of  the  Emperor.  The  danger  to  civilization 
now  was  that  the  restored  Imperial  power  would  become  an 
unlimited  despotism,  and  that  instead  of  finding  some  solu- 
tion of  the  problem  of  reconciling  Government  with  Liberty, 
Government  would  suppress  and  destroy  Liberty. 

Already  two  hundred  and  fifty  years  before  the  over- 
throw of  the  feudal  system  and  the  restoration  of  the 
Imperial  sovereignty,  China's  great  sage,  Confucius,  had 
lived  and  taught.  We  have  from  his  own  hand  but  very 


4  GOVERNMENT  AND  LIBERTY 

little.  He  had  a  large  number  of  disciples,  and  taught 
them  carefully  and  assiduously,  and  he  travelled  from  one 
to  another  of  the  feudal  Princes  endeavoring  to  impress 
upon  them  moderation  in  their  Government  and  the  love 
of  their  fellow  men.  His  system  as  preserved  and  handed 
down  by  his  disciples  was  a  great  code  of  morals  rather 
than  the  principles  of  a  religion,  and  so  far  as  his  teachings 
related  to  politics  and  Government,  his  purpose  was  to 
temper  the  despotic  power  of  the  Prince  over  his  subjects 
by  a  benevolent  disposition  in  the  exercise  of  it.  He  was 
no  revolutionist,  and  never  taught  violent  resistance  to 
established  authority.  He  only  sought  to  teach  the  Princes 
the  principles  and  axioms  of  benevolence  in  Government 
and  to  induce  them  to  apply  them.  Before  the  beginning 
of  the  Christian  era,  the  Confucian  system  of  morals,  as 
handed  down  by  his  disciples,  had  become  the  universal 
cult  in  China  and  was  moulding  both  the  public  and  pri- 
vate character  of  the  Chinese.  It  was  a  system  of  a  high 
order,  not  so  far  removed  from  the  system  of  Christian 
morals  as  most  men  think,  and  its  adoption  as  the  rule  of 
life  gave  China  a  civilization  which  has  endured  to  the 
present  day. 

The  new  dynasty  of  Tsin,  which  overthrew  the  feudal 
system  and  restored  the  Imperial  sovereignty,  was  quick 
to  observe  the  limitations  upon  the  Imperial  power  con- 
tained in  the  ethical  system  of  Confucius  and  endeavored 
to  get  rid  of  them  by  destroying  the  books  which  contained 
it,  and  putting  to  death  the  disciples  who  taught  it.  It 
may  have  been  the  offense  thus  given  to  the  moral  sense 
or  moral  rules,  perhaps,  of  the  people  which  brought  that 
dynasty  to  its  sudden  downfall.  Certain  it  is  that  the 
succeeding  Imperial  dynasty,  the  dynasty  of  Han,  which 
came  to  the  Imperial  throne  some  two  hundred  years  before 


ASIA  AND  AFRICA  5 

the  beginning  of  the  Christian  era,  was  most  assiduous  in 
gathering  together  and  preserving  the  remnants  of  the  an- 
cient books,  in  honoring  the  memory  of  the  great  sage  and 
in  re-establishing  his  cult. 

This  dynasty  sat  upon  the  Imperial  throne  for  more  than 
four  hundred  years  and  under  it  the  ethical  principles  of 
Confucius  in  respect  to  Government  became  the  system  of 
constitutional  limitations  upon  despotic  power.  They  be- 
came, not  only  the  basis  of  the  education  of  the  members 
of  the  Imperial  house  and  household,  but  also  of  all  the 
chief  officials.  With  all  this,  however,  the  way  was  still 
open  for  the  arbitrariness  of  Government  so  long  as  the 
authoritative  interpretation  of  the  Confucian  principles  of 
benevolence  in  Government  was  ultimately  and  exclusively 
in  the  hands  of  the  Emperor  and  his  officials  themselves. 
It  was  undoubtedly  for  the  purpose  of  meeting  and  curing 
this  constitutional  weakness,  made  continually  apparent  in 
practise,  that  the  famous  Council  of  Censors  was  created, 
consisting  of  a  President  and  forty  to  fifty  members,  en- 
tirely independent  of  the  Government  and  forming  no  part 
thereof  and  charged  with  the  duty  of  protecting  the  wel- 
fare of  the  people  against  all  attempted  arbitrariness  in  the 
administration,  by  reporting  the  same  to  the  Emperor  and 
even  warning  him  against  allowing  it.  In  order  to  carry 
out  this  great  purpose,  the  entire  Empire  was  divided  into 
districts  and  one  or  more  Censors  were  assigned  to  duty 
in  each,  the  duty  of  watching  over  all  governmental  pro- 
ceedings therein  and  reporting  the  same  to  the  Council  of 
Censors.  In  the  language  of  modern  political  science  we 
would  say  that  this  Council  of  Censors  was  a  sort  of  su- 
preme court  for  the  final  interpretation  of  the  principles  of 
the  Confucian  limitations  upon  the  despotic  actions  of  the 
Government,  in  behalf  of  the  so-called  natural  rights  and 


6  GOVERNMENT  AND  LIBERTY 

welfare  of  the  subjects.  Its  members  were,  of  course,  ap- 
pointed by  the  Emperor  and,  so  far  as  the  theory  of  the 
Imperial  despotism  was  concerned,  could  be  deposed  by 
him,  but  the  Confucian  ethics  had  sunken  so  deeply  into 
the  consciousness  of  the  Chinese  that  such  action  on  his 
part,  unless  supported  by  general  approval,  would  have 
endangered  his  throne.  In  fact,  so  far  as  we  know,  it  was 
almost  never  undertaken.  This  was  certainly  an  excellent 
political  system  for  Asia,  the  mother  of  religions  and  the- 
ocracies, to  have  produced  at  all,  and  certainly  so  at  that 
early  age  in  the  world's  civilization.  It  enabled  China  to 
live  and  prosper  under  changes  of  Imperial  dynasty  down 
to  the  last  decade  of  the  last  century  of  the  Christian  era 
with  very  little  help  or  influence  from  the  outside  world; 
and  it  has  prepared  China  to  finally  appropriate  the  Euro- 
pean political  ideas,  principles,  and  forms  with  far  less 
difficulty  and  with  much  greater  naturalness,  more  as 
evolution  than  as  revolution,  than  any  other  Asiatic 
country. 

Unhappily,  however,  for  China — perhaps  unhappily— 
the  power  and  influence  of  the  Council  of  Censors  and  of 
the  Confucian  principles  generally  declined  from  century 
to  century  under  the  Manchu  dynasty.  The  Manchus, 
and  the  Mongol  conquerors  before  them,  had  no  such  ap- 
preciation of  these  doctrines  as  the  genuine  Chinese.  Ap- 
parently, at  least,  the  Imperial  power  became  more  and 
more  despotic  and  found  ways  to  emancipate  itself  from 
the  limitations  upon  arbitrariness  imposed  by  the  Council 
of  Censors  and  either  to  repudiate  the  Confucian  principles 
altogether  or  to  interpret  them  in  its  own  way.  At  the 
same  time,  and  in  some  measure  at  least  in  consequence 
of  this  vicious  development,  discontent  grew  and  spread  and 
the  influence  of  the  West  became  stronger  and  stronger. 


ASIA  AND  AFRICA  7 

By  the  end  of  the  nineteenth  century  it  could  no  longer 
be  with  impunity  disregarded. 

In  1906  the  Emperor  sent  out  five  commissioners  to  in- 
vestigate the  constitutional  law  of  the  most  important 
states  of  the  world.  In  November  of  1908  the  Emperor 
by  edict  undertook  to  octroy,  as  the  French  say,  a  Consti- 
tution. It  did  little  more  than  ratify  the  existing  state  of 
affairs.  At  last,  in  1911,  the  revolution  broke  over  the 
unhappy  land.  It  was  quick  and  almost  bloodless.  An 
irregularly  chosen  assembly  formed  a  provisional  Constitu- 
tion and  elected  a  provisional  President. 

In  respect  to  the  question  we  are  discussing,  viz.:  the 
reconciliation  of  Government  and  Liberty,  it  is  not  a  very 
happy  outcome.  It  contains,  it  is  true,  a  Bill  of  Rights, 
similar  in  principle  to  what  is  to  be  found  in  most  Euro- 
pean Constitutions,  in  which  religious  liberty,  the  freedom 
of  speech  and  of  the  press,  freedom  from  illegal  arrest, 
trial  and  condemnation,  the  freedom  of  peaceable  assembly 
and  petition  to  the  Government,  the  freedom  of  movement 
and  of  occupation,  the  right  to  hold  property,  etc.,  are 
guaranteed.  But  no  way  is  provided  to  enforce  this  guar- 
antee against  the  almighty  Legislature,  and  its  enforce- 
ment against  the  Executive  is  intrusted  to  what  is  termed 
the  Court  of  Administrative  Litigation,  that  is,  to  a  tri- 
bunal not  furnished  with  the  power  and  independence  of 
the  ordinary  tribunals  for  administering  justice  between 
individuals,  and  the  Courts  generally  are  the  creatures  of 
ordinary  statute  law.  Hence,  although  the  Judges  hold 
apparently  by  a  constitutional  tenure,  the  Legislature  may 
by  ordinary  statute  provide  for  their  punishment,  dismissal, 
and  retirement,  and  they  have  no  power  to  interpret  the 
Constitution  against  a  legislative  act  of  any  kind  or  in  rela- 
tion to  any  subject.  The  Judicial  tribunals  do  not  have 


8  GOVERNMENT  AND  LIBERTY 

even  the  power  or  influence  against  the  Government  in 
behalf  of  Individual  Liberty  once  possessed  by  the  Council 
of  Censors. 

The  framers  of  the  present  Chinese  Constitution  seem 
to  have  considered  that  the  declared  sovereignty  of  the 
people,  a  unicameral  Legislature  elected  by  the  people  and 
furnished  with  all  legislative  power  and  with  the  power 
to  elect  and  depose  the  Executive  and  the  power  to  create 
and  control  the  Judiciary,  were  sufficient  guarantees  of 
Individual  Liberty.  For  the  benevolence  of  the  Emperor, 
denned  by  the  Confucian  maxims  as  interpreted  finally  by 
the  Council  of  Censors,  they  have  substituted  the  benevo- 
lence of  the  almighty  Legislature  interpreted  by  its  own 
conceit.  In  political  theory  they  have  sacrificed  Liberty 
entirely  to  Government,  and  have  destroyed  the  little 
which  old  China  had  contributed  to  the  solution  of  the 
problem  of  the  reconciliation  of  Government  and  Liberty. 
How  it  will  turn  out  practically  remains  to  be  seen.  It  is 
true  that  the  present  Constitution  and  Government  are 
termed  provisional,  but  an  article  in  a  recent  number  of 
the  Atlantic  Monthly  by  Ching  Chun  Wang,  pleading  for  the 
recognition  of  the  Chinese  Republic,  declares  that  not  too 
much  stress  should  be  laid  upon  the  word  provisional  and 
indicates  that  the  provisional  organization  is  to  be  the 
permanent  and  regular  one;  and  the  tendency  of  the 
Asiatic  mind  to  despotism  in  Government  inclines  us  to 
believe  that  such  will  be  the  case,  but  it  will  be  the  despot- 
ism of  the  Executive  rather  than  the  Legislature. 

In  reviewing  the  history  and  present  Constitution  of 
Japan  we  reach,  practically,  the  same  result.  Somewhere 
about  two  hundred  and  fifty  years  before  the  beginning 
of  the  Christian  era  a  band  of  military  adventurers  from 


ASIA  AND  AFRICA  9 

China  or  Corea  is  said  to  have  crossed  over  to  the  south- 
west corner  of  the  Island  of  Japan  and  to  have  subjected 
the  aborigines  to  their  rule  in  the  southwestern  half  of  the 
island  or  to  have  driven  them  backward  toward  the  north- 
east. They  established  themselves  in  the  district  around 
the  present  city  of  Kioto  and,  under  the  lead  of  their  Chief, 
the  Mikado,  developed  the  earliest  political  system  of 
Japan  known  to  us,  and  gradually  extended  its  sway  over 
the  entire  island.  As  the  military  condition  continued  for 
many  years  after  the  invasion,  so  the  military  organiza- 
tion became  substantially  the  civil  organization;  that  is, 
the  Mikado,  the  military  Chieftain,  was  regarded  as  the 
source  of  all  governmental  power  and  authority  and  exe- 
cuted the  functions  of  a  civil  nature,  like  those  of  a  mili- 
tary nature,  by  his  own  appointed  agents,  subject  at  all 
times  to  his  will  and  pleasure.  He  appointed  from  among 
his  followers  the  Governors  of  provinces  and  districts,  held 
them  responsible  to  himself,  and  supervised  the  conduct 
of  affairs.  In  European  history  the  invasion  and  conquest 
of  England  by  the  Duke  of  Normandy  and  the  establish- 
ment of  his  Government  over  the  same  was  a  movement 
of  a  similar  nature  to  what  happened  more  than  a  thou- 
sand years  earlier  in  Japan. 

For  about  eight  hundred  years  this  absolute,  centralized, 
hereditary  Government  of  the  Mikado  continued  in  active 
force,  when  the  Governors  of  the  provinces  and  districts 
of  the  Empire,  the  Daimaos,  entered  into  a  sort  of  con- 
spiracy to  secure  greater  independence  against  the  Im- 
perial power.  The  means  they  employed  were  those  of 
craft  rather  than  of  force.  Somewhere  about  the  sixth  or 
seventh  century  of  the  Christian  era  the  religion  of  the 
Hindoo  Siddhartha  Gautama,  the  Buddha,  made  its  way 
into  Japan  and  displaced  largely  the  ancient  religion  of 


io  GOVERNMENT  AND  LIBERTY 

the  people,  Shintoism,  the  worship  of  Ancestors.  The  phil- 
osophical and  ethical  side  of  the  Buddha's  teachings  do 
not  seem  to  have  been  much  regarded  by  the  Japanese. 
They  seem  to  have  been  almost  entirely  attracted  by  the 
Buddha's  religious  idea  of  renunciation  of  the  world  and 
absorption  in  Nirvana.  The  house  of  the  Mikado  became 
affected  by  it  and  the  crafty  palace  officials  under  the  in- 
fluence of  the  Daimaos  succeeded  in  inducing  the  Mikados 
to  retire  from  the  active  work  of  Government,  lead  the  life 
of  the  ascetics,  and  leave  the  administration  of  affairs  to 
the  Daimaos,  each  in  his  own  district. 

The  decentralization  thus  introduced  developed  rapidly 
and  was  gradually  leading  the  Empire  to  anarchy,  when, 
in  1192,  the  powerful  Daimao  Minamoto  Yoritomo  suc- 
ceeded in  having  himself  appointed  Majordomo,  Shogun, 
by  the  existing  Mikado  and  set  out  upon  the  policy  of 
building  up  his  own  independent  rule  over  the  entire  Em- 
pire. The  system  which  he  introduced  was  what  was  called 
in  Europe  about  the  same  period  the  feudal  system.  Yori- 
tomo gave  to  the  Governors  of  the  provinces  and  districts, 
the  Daimaos,  these  provinces  and  districts  as  fiefs  of  the 
Crown;  that  is,  he  assumed  to  make  the  Daimaos  and 
their  hereditary  descendants  Lords  of  the  soil  of  these 
provinces  and  districts  and,  as  incident  of  such  ownership, 
Governors  over  the  vassals  and  subjects  inhabiting  them, 
reserving  to  himself  the  overlordship  of  the  whole  territory 
of  the  Empire  and  requiring  from  each  Daimao  military 
service  and  aides.  His  idea  seems  to  have  been,  through 
this  generosity  to  the  Daimaos,  to  win  them  to  his  plan 
for  displacing  the  Mikado.  The  result  seems  to  have  been 
that,  while  they  cared  little  whether  the  Mikado  or  the 
Shogun,  as  Yoritomo  and  his  descendants  were  called,  held 
the  nominal  overlordship  over  them,  they  followed  the  old 


ASIA  AND  AFRICA  n 

decentralizing  course  with  the  purpose  of  establishing  an 
independent  state,  each  in  his  own  province  or  district. 
By  the  beginning  of  the  seventeenth  century  it  had  about 
come  to  that,  when  the  capable,  crafty,  and  energetic 
Daimao  Tokugawa  leyas,  playing  the  r61e  of  a  Charles 
Martel  or,  better,  of  a  Louis  XI,  seized  the  Shogun  power, 
deposed  the  Daimaos  who  would  not  subject  themselves  to 
him,  and  ruled  the  whole  Empire  either  through  his  own 
appointed  agents  or  through  those  Daimaos  who  would 
obey  and  execute  his  will. 

During  the  Shogunate  of  the  Tokugawas,  which  lasted 
from  1603  to  1868,  the  Mikado  with  the  officials  of  his 
court  and  state,  while  nominally  the  Sovereign,  remained 
in  monkish  retirement,  while  the  Shogun,  though  nomi- 
ally  the  agent  and  appointee  of  the  Mikado,  exercised  all 
the  powers  of  the  Government  according  to  his  own  will 
and  pleasure. 

In  order  to  maintain  this  deception  the  Shoguns  kept 
the  people  in  densest  ignorance.  No  education  internally 
was  encouraged  and  no  intercourse  with  the  outside  world 
was  permitted.  A  sinister  and  hopeless  despotism  was 
fastening  itself,  apparently  finally,  upon  the  unhappy  land. 
In  the  middle  of  the  nineteenth  century,  however,  events 
began  to  shape  themselves  more  favorably.  In  the  first 
place,  the  ability  and  character  of  the  Shoguns  were  on 
the  decline.  Then  the  crop  failures  brought,  especially  in 
the  absence  of  a  monetary  system,  great  embarrassment  to 
the  treasury  of  the  Shogun,  which  caused  the  desertion  of 
many  of  his  mercenaries.  Then  the  forcing  open  of  the 
ports  of  Japan  by  Commodore  Perry's  expedition,  and 
similar  action  on  the  part  of  other  Powers,  were  great  fac- 
tors, and  finally  the  renaissance  of  Shintoism,  the  worship 
of  Ancestors,  closely  connected  with  which  was  the  duty 


12  GOVERNMENT  AND  LIBERTY 

of  loyalty  to  the  Mikado,  was  in  itself  almost  a  revolution. 
All  these  things  discredited  profoundly  the  Shogunate  in 
the  minds  of  the  people  and  led  to  the  movement  for  re- 
storing the  Mikado  and  expelling  the  foreigner. 

In  1868  the  last  Shogun  returned  his  powers  to  the 
Mikado,  Mutsuito,  and  the  active  Government  of  the 
Mikado  was,  after  nearly  seven  hundred  years  of  priestly 
retirement,  restored.  The  movement  which  brought  about 
this  result,  however,  was  of  too  popular  a  nature  to  be 
satisfied  with  the  Mikadoate  exactly  as  it  was  before  1192. 
The  desire,  not  to  say  demand,  for  a  modification  of  the 
absoluteness  of  the  Mikado's  Government  was  too  strong 
to  be  ignored.  The  Mikado  issued  a  manifesto  in  the 
first  year  of  his  restoration  promising  to  admit  represen- 
tatives of  the  people  to  participation  in  the  Government. 
Twenty  years,  however,  passed  before  this  promise  was 
redeemed.  Twenty  years  of  absolute  rule  by  the  Mikado 
were  regarded  as  necessary  to  prepare  the  country  for  a 
representative  institution.  At  last,  in  the  year  1889,  a 
Constitution  prepared  by  the  Marquis  of  Ito,  following 
rather  closely  the  model  of  the  Prussian  Constitution,  was 
proclaimed  in  force. 

From  a  cursory  view  of  this  instrument,  one  might  form 
the  opinion  that  Japan  had  established  a  Constitution 
quite  on  the  Western  order,  but  a  critical  examination  of 
it  will  quickly  convince  any  constitutional  lawyer  that 
most  of  the  provisions  of  the  instrument,  which  make  this 
favorable  impression,  are  illusory.  First  of  all,  it  must  be 
kept  in  mind  that  in  the  period  between  1868  and  1889 
the  Emperor,  as  we  shall  henceforth  term  the  Mikado,  and 
his  chief  officials,  had  created,  on  the  basis  of  the  Imperial 
autocracy,  a  complete  system  of  laws  and  ordinances  and 
of  governmental  administration  for  the  Empire,  and  that 


ASIA  AND  AFRICA  13 

in  the  Constitution  of  1889  all  this  was  declared  as  con- 
tinuing in  force  in  so  far  as  left  unchanged  by  the  provisions 
of  the  Constitution,  which  itself  was  only  an  Imperial  edict, 
and  changed  the  existing  law,  therefore,  only  in  so  far  as 
the  Emperor  himself  willed  to  do  so.  Then  coming  to  the 
provisions  of  this  instrument  itself,  we  find  that  the  ten- 
ure of  the  Emperor  is  primogeniture  in  the  male  line  of  his 
family  by  agnatic  succession;  that  his  term  is  eternal; 
that  his  person  is  holy  and  inviolable;  that  he  is  the  head 
of  the  state  and  exercises  the  sovereign  power;  that  the 
Constitution  can  be  amended  only  upon  his  proposition; 
that  he  has  not  only  the  usual  executive  powers  of  com- 
manding the  Army  and  Navy,  appointing  and  dismissing 
all  the  civil  and  military  officials,  supervising  the  execu- 
tion of  the  laws,  granting  reprieves  and  pardons,  and  send- 
ing and  receiving  Ambassadors,  other  public  Ministers  and 
Consuls,  but  has,  also,  the  power  to  fix  the  war  and  peace 
footing  of  the  Army  and  Navy,  their  organization  and  the 
salaries  of  all  officials  both  military  and  civil,  the  power  to 
declare  war,  make  peace,  and  conclude  treaties  and  agree- 
ments with  foreign  states,  the  power  to  declare  the  Em- 
pire in  a  state  of  siege  and  suspend  all  the  rights  of  the 
subjects  during  such  period,  the  power  to  call,  open,  ad- 
journ, and  prorogue  the  Legislature  and  dissolve  the  Lower 
House  thereof,  the  power  to  appoint  the  presiding  officers 
of  the  two  legislative  bodies,  the  House  of  Lords  and  the 
House  of  Deputies,  the  power  to  virtually  constitute  the 
House  of  Lords;  also  the  power  to  initiate  legislation  and 
to  veto  all  projects  of  legislation  coming  to  him  from  the 
legislative  bodies  absolutely,  the  power  not  only  to  make 
the  ordinances  for  the  administration  of  the  laws,  but  to 
make  ordinances  which  shall  have  the  force  of  law,  in 
case  the  Legislature  is  not  in  session  and  when  he  shall 


i4  GOVERNMENT  AND  LIBERTY 

deem  it  necessary  to  the  public  security  or  the  public  wel- 
fare, and  finally  the  power  to  control  the  expenditures  in- 
curred in  the  exercise  of  his  sovereign  rights,  and  in  respect 
to  all  appropriations  made  by  law,  and  to  all  obligations 
binding  upon  the  Government,  and  to  put  the  budget  of 
the  preceding  year  in  force  in  case  the  Legislature  should 
refuse  to  vote  the  budget  for  the  current  year. 

These  powers  of  the  Emperor  certainly  make  the  Legis- 
lature virtually  a  debating  society,  despite  the  fact  that 
the  members  of  the  Chamber  of  Deputies  are  elected  by 
the  male  subjects  twenty-five  years  of  age  and  paying 
about  seven  dollars  a  year  taxes.  In  fact  the  Constitu- 
tion declares  outright  that  the  Emperor  exercises  the  legis- 
lative power  with  the  approval  of  the  Chambers.  The  only 
limitation  which  the  Legislature  can  impose  upon  the  abso- 
luteness of  the  Imperial  prerogative  is  to  prevent  the  en- 
actment of  any  new  statute.  But  this  is  a  limitation  more 
apparent  than  real,  since  the  Emperor  can  govern  per- 
fectly well  with  the  existing  law,  all  of  which  was  edicted 
by  him  or  passed  with  his  approval,  or  by  means  of  ordi- 
nances supplementing  the  same. 

And  when  we  come  to  the  most  important  test  of  the 
character  of  a  Constitution,  viz.:  the  relation  of  the  Gov- 
ernment to  the  individual  citizen  or  subject,  we  do  not 
find  in  the  Japanese  instrument  any  limitations  upon  the 
powers  of  Government  in  behalf  of  Individual  Liberty 
which  do  not  largely  disappear  upon  close  examination. 
The  Constitution  contains  indeed  an  entire  section  devoted 
to  this  subject,  which  looks  at  first  view  like  the  usual 
Bill  of  Rights,  guaranteeing  freedom  from  arbitrary  arrest, 
imprisonment,  trial,  and  condemnation,  from  domiciliary 
search,  from  censorship  over  opinion  and  its  expression, 
from  interference  with  unions  and  assemblies,  also,  guar- 


ASIA  AND  AFRICA  15 

anteeing  freedom  of  religion,  of  sojourn  and  domicile,  of 
petition  to  the  Government  for  redress  of  grievances,  and 
the  security  of  private  property.  But,  when  we  scrutinize 
these  provisions  critically,  we  find,  first,  that  they  care- 
fully declare  the  Japanese  people  to  be  subjects  not  citi- 
zens, and  nullify,  practically,  all  of  these  guarantees  by 
declaring  them  valid  only  within  legal  limits,  that  is, 
within  the  limits  prescribed  by  the  Emperor  alone  before 
the  Constitution  was  declared  in  force,  or  by  the  Emperor 
with  the  consent  of  the  Legislature,  or  by  the  Emperor  by 
virtue  of  his  ordinance  power  reserved  in  the  Constitution. 

Moreover,  the  Judicial  branch  is  constituted  by  ordi- 
nary statute  and  can,  of  course,  be  abolished  in  the  same 
way,  and  although  the  Judges  are  appointed  nominally 
for  life  they  can  be  deposed  by  a  disciplinary  proceeding 
fixed  by  ordinary  statute.  Finally,  there  is  not  the  shadow 
of  a  power  vested  in  the  Judiciary  to  defend  the  constitu- 
tional Immunities  of  the  Individual  against  the  acts  of  the 
Legislature,  or  indeed  of  the  Emperor.  If  any  controversy 
arises  between  an  individual  and  an  official  it  goes  before 
the  Administrative  Courts,  which  are  subject  to  the  will 
of  the  Emperor. 

The  Japanese  are  organized  under  this  Constitution  for 
the  exercise  of  strong  military  power,  for  presenting  united 
front  against  foreign  Powers  and  for  restraining  internal 
disorder,  but  it  sacrifices  Liberty  to  Government  again 
and  makes  but  little  advance  over  the  other  Asiatic  states 
in  the  maintenance  of  both  Liberty  and  Government,  and 
the  harmonizing  of  both  in  a  maturely  developed  political 
system  of  a  superior  order. 

The  history  and  present  political  status  of  Persia  is  an- 
other example  of  the  inability  of  Asia  to  solve  our  problem, 


16  GOVERNMENT  AND  LIBERTY 

while  giving  evidence  of  some  consciousness  of  its  existence 
and  of  some  yearning  for  the  conditions  which  its  solution 
would  bring. 

We  do  not  need  to  waste  our  time  and  energy  upon  the 
history  of  ancient  Iran,  because,  in  the  first  place,  we  do 
not  possess  exact  knowledge  enough  about  it,  and  because, 
in  the  second  place,  we  are  bound  to  conclude  from  what 
we  do  know  that,  in  its  political  system,  Liberty  was  com- 
pletely sacrificed  to  Government,  and  that  its  political  sys- 
tem was  the  usual  Asiatic  governmental  despotism. 

First  with  the  conquest  of  Persia  by  the  Arabs  and  the 
introduction  of  Mohammedanism,  in  the  seventh  century 
of  the  Christian  era,  do  we  come  upon  anything  in  Persian 
political  history  which  bears  upon  our  subject.  The  or- 
ganization of  the  Arabian  tribes  into  the  Mohammedan 
state  of  Medina,  then  of  Damascus,  and  then  of  Bagdad 
is  the  great  political  fact  of  southwestern  Asiatic  history 
from  the  seventh  century  to  the  rise  of  the  Turks  in  the 
twelfth  century.  The  Koran  and  Multeka  of  Mahomet 
contain  in  their  spirit  and  provisions  a  certain  limitation 
upon  despotic  governmental  power,  which  lifts  the  political 
system  subject  to  them  up  to  a  higher  plane  of  civilization. 

Mahomet,  born  in  the  latter  part  of  the  sixth  century 
in  Mecca,  found  Arabia  in  the  condition  of  tribal  Gov- 
ernment, and  tribal  independence,  according  to  which  the 
bond  of  blood  was  the  principle  of  political  organization 
and  the  country  was  torn  and  bleeding  by  the  dissensions 
of  these  petty  states,  if  such  organizations  can  be  dignified 
by  the  name  of  states.  Moved  by  the  misery  thus  pro- 
duced he  evolved  and  taught  the  doctrine  of  the  oneness 
of  God  and  the  equality  of  men.  When  I  say  he  evolved 
this  doctrine  I  do  not  mean  originated  it  for  the  world, 
but  only  for  the  situation  of  southwestern  Asia  in  the 


ASIA  AND  AFRICA  17 

seventh  century.  Upon  the  basis  of  it  he  erected  what 
we  may  call  the  democratic  state  of  Medina,  and  began 
the  work  of  dissolving  the  tribal  organizations  and  subject- 
ing their  elements  to  the  new  political  principle  of  the 
Koran. 

There  can  be  no  question  that  here  was  a  great  advance 
in  political  civilization  and  in  general  civilization.  It  pro- 
duced two  great  states  of  the  world,  which  have  endured  to 
the  present  day,  viz. :  Persia  and  Turkey,  and  I  can  see  no 
other  explanation  for  their  continued  existence,  and  their 
superior  civilization  to  the  unlimited  despotisms  which 
have  risen  and  fallen  in  Asia,  except  the  religious,  moral, 
and  civil  limitations  placed  by  the  Koran  and  Multeka,  and 
by  the  priesthood  which  have  upheld  them,  upon  govern- 
mental power  and  upon  the  tendency  of  an  unchecked  Gov- 
ernment to  degenerate  into  despotism.  No  unprejudiced 
scientific  mind  can  fail  to  see  in  the  religion  of  Mahomet  a 
vast  advance  over  the  polytheism  of  his  time  and  region, 
in  the  morals  of  Mahomet  over  the  barbarous  and  degraded 
customs  of  his  age,  and  in  the  laws  of  Mahomet  over  the 
bloody  strife  and  anarchy  which  universally  prevailed. 
Even  the  condition  of  woman,  usually  regarded  now  as  the 
most  vulnerable  point  in  the  Mohammedan  system,  was 
vastly  improved  over  what  then  obtained. 

The  political  history  of  Persia  from  the  time  of  its  con- 
quest by  the  followers  of  the  Prophet  and  the  introduction 
of  his  system  down  to  the  year  1905  is  the  history  of  a 
change  of  dynasties  rather  than  of  a  change  of  systems. 
The  system  had,  however,  a  certain  development.  At 
first  the  Caliph  was  both  the  temporal  and  spiritual  head 
of  the  state  and  people.  Then,  as  the  priesthood  gradu- 
ally developed  and  became  organized,  the  final  interpre- 
tations of  the  Koran  and  Multeka  were  assumed  by  them, 


i8  GOVERNMENT  AND  LIBERTY 

and  finally  the  supreme  power  of  interpretation  of  the 
principles  of  Mohammedanism  was  recognized  as  centring 
in  the  Mujtahid,  or  chief  priest,  of  Kerbela.  For  centuries 
the  Caliph  or  Shah  of  Persia  has  had  no  voice  in  the  ap- 
pointment of  this  chief  priest.  He  is  either  chosen  by  the 
Ulemas  or  arrives  at  his  office  by  a  sort  of  natural  selec- 
tion, by  a  general  recognition  of  his  superior  ability  to  in- 
terpret rightly  the  principles  of  Mohammedanism.  The 
independent  position  of  the  Mujtahid  of  Kerbela  has  been 
a  real  limitation  upon  governmental  absolutism.  The 
Shah  has  been  the  sole  Government,  but  has  been  obliged 
to  govern  within  the  lines  of  the  Koran  and  Multeka  as 
interpreted  finally  by  the  chief  priest.  Here  was  a  real 
contribution  to  the  solution  of  the  great  problem  of  the 
reconciliation  of  Government  with  Liberty.  The  entire 
priestly  organization  defended  a  certain  sphere  of  Individ- 
ual Immunity  against  the  autocracy  of  the  Shah.  Here 
was  the  possibility  of  a  continuous  political  civilization. 
Fatefully,  I  will  not  say  unfortunately  or  fortunately,  for 
I  know  not  which,  for  Persia,  no  Mujtahid  of  Kerbela  has 
existed  since  the  year  1895,  but  a  long  struggle  not  yet 
ended,  over  the  great  position  has  helped  to  plunge  the 
unhappy  land  into  confusion  and  anarchy. 

At  the  same  time  the  increasing  contact  with  Europeans 
and  with  Western  civilization  has  undermined  the  influ- 
ence of  the  Mohammedan  religion  over  the  Persian  people 
and  the  competition  between  Russia  and  Great  Britain  for 
the  superior  control  has  complicated  the  situation  and 
demoralized  the  people  still  further. 

In  1905  the  popular  demand  for  a  Representative  Gov- 
ernment arose  and  could  not  be  suppressed.  In  1906  the 
Shah  announced  his  consent  to  the  establishment  of  a  Na- 
tional Council  elected  by  the  descendants  of  the  Royal 


ASIA  AND  AFRICA  19 

House,  the  members  of  the  Kajar  families,  to  which  tribe 
the  Royal  House  originally  belonged,  the  priests,  the  land- 
owners, merchants,  and  tradesmen.  In  the  autumn  of  this 
same  year  the  members  of  this  Council  were  elected  and 
assembled,  and  the  Shah  signed  formally  the  Constitu- 
tion, which  contained  the  authority  for  the  existence  and 
powers  of  the  Council  as  well  as  the  other  parts  of  the 
Government,  and  took  the  oath  upon  the  Constitution  in 
the  presence  of  the  Council.  In  June  of  1908,  taking  ad- 
vantage of  dissensions  in  the  Council,  the  Shah  dissolved 
it,  and,  by  a  decree,  abolished  it  and  with  it  the  Constitu- 
tion. This  precipitated  the  revolution  of  1909  to  which 
the  Shah  surrendered  and  abdicated. 

The  Revolutionists  restored  the  Constitution  of  1906, 
elected  the  Vali-Ahd  Shah  and,  also,  the  members  of  a 
new  Council  or  Parliament.  The  Constitution,  with  the 
modifications  introduced  by  the  Revolutionists,  although 
it  contains  something  in  the  nature  of  a  Bill  of  Rights, 
virtually  vests  all  power,  sovereignty,  in  the  Government. 
The  limitations  imposed  by  the  principles  of  Mohamme- 
danism in  behalf  of  the  subject  are  swept  away.  The 
Mohammedan  religion  itself  is  passing,  and  nothing  in  the 
way  of  a  maker  of  character  and  conscience  is  taking  its 
place.  The  police  power  of  the  Government  is  to  be  its  sub- 
stitute until  Great  Britain  and  Russia  see  fit  to  make  out 
of  their  spheres  of  influence  territorial  annexations.  Again 
we  are  discomfited  in  our  attempt  to  find  any  real  contri- 
bution to  the  solution  of  our  problem. 

Finally  we  come  to  the  Ottoman  Empire,  a  state  which 
once  reached  magnificent  proportions  territorially  and 
which  more  than  once  appeared  capable  of  a  political  de- 
velopment of  a  high  order. 


20  GOVERNMENT  AND  LIBERTY 

It  was  somewhere  during  the  first  half  of  the  thirteenth 
century  that  a  tribe  of  some  four  hundred  families  led  by 
its  chief,  one  Suleyman,  left  its  home  in  Khorassan,  in  Cen- 
tral Asia,  being  crowded  upon  by  a  Mongol  horde  of  ma- 
rauders, and  trekked  westward  into  Asia  Minor.  It  set- 
tled in  a  valley  near  the  Eastern  frontier  of  the  East 
Roman  Empire  and  came  into  contact  with  the  Moham- 
medan rulers  in  that  section.  Almost  immediately  its 
members  embraced  Mohammedanism,  and  by  the  begin- 
ning of  the  fourteenth  century,  under  its  chief  Othman  or 
Osman,  it  had  entered  upon  its  eventful  career  in  civiliza- 
tion. 

It  is  not  necessary  to  the  subject  of  this  book  to  enter 
upon  the  history  of  its  conquests  for  the  next  two  and  a 
half  centuries,  through  which  it  became  the  leading  power 
of  Asia  and  almost  also  of  Europe,  reaching  from  beyond 
the  Tigris  in  Asia  to  the  Danube  in  Europe  and  to  the 
confines  of  Morocco  in  Africa.  The  things  which  chiefly 
concern  us  in  this  treatise  is  that  this  great  Empire  was 
from  the  first  and  continued  to  be,  down  to  the  most  mod- 
ern period  of  history,  moulded  by  the  principles  of  Moham- 
medanism and  owed  its  great  success  and  its  continued 
existence  to  this  fact  rather  than  to  anything  else  and 
everything  else.  The  Osmanli  embraced  freely  the  Mo- 
hammedan religion,  and  the  Government  of  their  Sultan 
was  developed  under  its  influences  and  its  limitations  from 
the  very  first  period  of  their  settlement  in  Asia  Minor. 

As  we  have  seen  in  another  connection,  the  political  re- 
sult of  the  adoption  of  this  religion  was  the  breaking  down 
of  the  tribal  lines  as  political  divisions  and  the  substitu- 
tion therefor  of  the  idea  of  the  unity  of  all  believers  in  Allah 
in  one  holy  state,  subject  to  Government  according  to  the 
principles  of  the  Koran  and  Multeka.  The  Osmanli  found 


ASIA  AND  AFRICA  21 

the  inhabitants  of  Asia  Minor  and  of  Asia  generally,  as  far 
as  to  the  confines  of  India,  already  prepared  for  the  recog- 
nition of  a  state  upon  their  basis.  They  carried  their  au- 
thority and  their  religion  into  Europe,  on  the  other  hand, 
solely  by  the  power  of  the  sword,  and  sought  to  substitute 
them  there  for  a  civilization  both  religious  and  political 
of  a  higher  character  than  their  own. 

The  theory  of  the  Ottoman  system  was,  at  least  from 
the  beginning  of  the  fourteenth  century,  the  autocracy  of 
the  Sultan  as  both  Padishah  and  Caliph,  that  is,  as  both 
temporal  and  spiritual  ruler;  but  there  soon  developed  a 
powerful  priesthood,  the  Ulemas,  under  the  leadership  of 
the  Sheikh  ul  Islam,  which  claimed  the  ultimate  interpre- 
tation of  the  Koran  and  Multeka  and  maintained  this  vast 
power  upheld  by  the  mass  of  believers,  in  other  words,  by 
the  people.  This  was  a  democratic  power,  so  to  speak, 
organized  in  this  powerful  priestly  corporation,  which  kept 
.the  Sultan  within  rational  limitations  and  maintained  a 
certain  sphere  of  Liberty  and  even-handed  justice  for  the 
subjects  of  his  Government.  The  early  Sultans  were  men 
of  great  ability  and  of  austere  virtue.  They  lived  them- 
selves in  accordance  with  the  strict  rule  of  the  Moham- 
medan religion  and  ethics. 

It  was  only  after  they  came  into  contact  with  the  civi- 
lization of  the  East  Roman  Empire  that  the  bonds  of  their 
own  religion  began  to  loosen  and  the  consequent  demoral- 
ization to  manifest  itself.  The  transformation  of  the  mili- 
tary system  and  the  establishment  of  the  Harem  followed 
quickly  upon  the  invasion  of  Europe.  The  Osmanli,  whose 
religious  fanaticism  had  carried  the  power  of  the  Sultan 
thus  far,  were  superseded  by  the  Janizaries,  a  new  standing 
Army  recruited  from  among  the  vanquished  Christians. 
Without  any  religious  or  moral  principle  to  nerve  their 


22  GOVERNMENT  AND  LIBERTY 

arms,  in  the  first  place,  or  curb  their  passions,  in  the  sec- 
ond, they  became  a  terrible  soldatesca,  who  carried  terror 
with  them  in  their  conquests,  and  then  laid  their  will  upon 
the  cowering  Sultans  dawdling  in  the  Harem  with  the 
women.  They  actually  made  and  unmade  Sultans  and 
scandalized  the  Mohammedan  religion  and  morals.  The 
Sultans  tried  again  and  again  to  reorganize  their  Osmanli 
subjects  in  military  power,  but  it  was  the  first  quarter  of 
the  nineteenth  century  before  they  finally  succeeded,  and  by 
that  time  the  Ottoman  Empire  was  already  in  decadence. 

From  the  period  of  the  Greek  rebellion,  in  the  third 
decade  of  the  last  century,  onward  the  Ottoman  Empire 
has  been  driven  step  by  step  from  Europe  and  Africa  and 
seems  soon  destined  to  be  confined  to  Asia.  Its  contact 
with  Europe,  however,  has,  as  I  have  said,  demoralized  its 
people  and  its  Government. 

It  began  in  1876,  in  seeming  good  earnest,  the  work  of 
Europeanizing  its  political  system,  all  unmindful  that,  while 
the  European  system  is  a  great  advance  in  political  civili- 
zation over  the  original  system  of  the  Ottoman  Empire,  it 
cannot  be  grafted  on  a  Mohammedan  religious  and  ethical 
system  without  demoralization  in  both  directions.  In 
December  of  1876,  when  called  upon  to  face  the  demands 
of  Europe  in  regard  to  the  treatment  of  his  European 
and  Christian  subjects,  the  Sultan  proclaimed  a  Constitu- 
tion, fashioned  after  the  European  model.  He  seemed  to 
prefer  this  to  a  treaty  with  those  Powers  upon  this  point. 
He  could  withdraw  his  Constitution  at  pleasure,  but  he 
could  not  withdraw  from  the  obligations  of  a  treaty  so  easily. 
The  European  Powers  paid  no  attention  to  this  Constitu- 
tion, but,  by  the  resolutions  of  the  Congress  of  Berlin  of 
1878,  imposed  upon  the  Ottoman  Empire  its  own  terms. 
The  Sultan,  after  this,  seemed  to  feel  no  further  obligation 


ASIA  AND  AFRICA  23 

to  observe  the  Constitution  and  from  1878  on  suspended 
its  operation. 

For  thirty  years  more  the  demoralization  of  the  Mo- 
hammedan system  continued.  The  Sheikh  ul  Islam  and 
the  Ulemas,  as  the  final  interpreters  and  teachers  of  the 
system  of  the  Koran  and  the  Multeka,  lost  largely  their 
control  both  of  the  Government  and  of  the  conscience  of 
the  subjects.  While  the  Government  was  growing  thus 
more  absolute  on  the  one  side,  revolution  was  in  fomen- 
tation on  the  other. 

At  length,  in  the  year  1908,  what  is  called  the  young 
Turkish  party  forced  the  restoration  of  the  Constitution  of 
1876,  with  an  important  addition  concerning  Civil  Rights, 
and  in  1909  the  abdication  of  Abdul  Hamid  II.  They 
elevated  Mohammed  V  to  the  throne  and  resumed  the  task 
of  transforming  the  system  of  the  Ottoman  Empire  into 
that  of  the  European  state.  The  Constitution  is  rather 
a  Charter  issued  by  the  Sultan  than  an  organic  law  adopted 
by  the  people.  In  it  the  Sultan  is  sovereign  and  can, 
therefore,  change  it  or  withdraw  it  as  he  will.  In  it  the 
governmental  prerogatives  of  the  Sultan  are  declared  to  be 
the  power  to  appoint  and  dismiss  the  Ministers  of  State, 
to  confer  office,  rank,  honors,  and  decorations,  to  invest 
with  office  the  Governors  of  the  self-governing  or  privileged 
provinces,  to  coin  money,  to  conclude  treaties  with  foreign 
states,  to  declare  war  and  make  peace,  to  command  the 
Army  and  Navy,  to  issue  edicts  and  ordinances  for  the  ad- 
ministration of  the  law,  to  reprieve  and  pardon,  to  ad- 
minister justice  according  to  the  principles  of  the  Koran 
and  the  Multeka,  to  call,  open,  and  prorogue  the  Parlia- 
ment, to  appoint  the  Senators  for  life  terms,  and  to  dissolve 
the  Lower  House  of  Parliament,  and  to  appoint  and  invest 
with  power  the  presiding  officers  of  both  Houses,  to  initiate 


24  GOVERNMENT  AND  LIBERTY 

exclusively  legislation  through  his  Ministers,  to  veto  all  bills 
and  resolutions  of  the  Legislature,  and  to  promulgate  and 
execute  the  laws.  The  participation  of  the  people  in  the 
Government  is  to  be  seen  only  in  their  right  to  elect 
the  members  of  the  Lower  House  of  Parliament  and  in  the 
power  of  this  House  to  prevent  the  passage  of  any  new  law 
or  the  repeal  of  any  old  law  and  to  defeat,  in  whole  or  in 
part,  the  adoption  of  the  budget.  Inasmuch,  however,  as, 
according  to  other  provisions  of  the  Constitution,  the  Sul- 
tan's ordinances  take  the  place  of  Parliamentary  Acts,  when 
the  Parliament  is  not  in  session,  a  situation  which  the  Sul- 
tan can  control  by  using  his  prerogative  of  dissolving  the 
Lower  House,  and  the  Sultan's  edict  may,  when  Parliament 
does  not  adopt  the  budget,  authorize  the  continuance  of 
the  budget  of  the  preceding  year,  and  the  laws  in  exist- 
ence at  the  time  of  the  promulgation  of  the  Constitution 
which  do  not  conflict  with  any  provision  thereof  are  de- 
clared by  the  Constitution  as  continuing  in  force,  this 
power  of  the  Parliament  to  prevent  the  enactment  of  new 
laws  or  the  repeal  or  modification  of  old  laws  is  largely 
illusory. 

The  point,  however,  of  special  importance  to  us  in  the 
inquiry  is  as  to  the  power  of  the  Government  over  the 
Immunities  of  the  Individual.  The  Ottoman  Constitu- 
tion contains  the  usual  Bill  of  Rights  of  the  modern  Eu- 
ropean Constitutions,  which  provides  freedom  of  religion, 
freedom  of  speech  and  of  the  press  and  of  instruction, 
liberty  of  the  person  within  the  legal  limits,  security  of 
property  within  the  legal  limits,  inviolability  of  the  home, 
freedom  of  association  and  of  petition,  and  the  equal  pro- 
tection of  the  laws.  It  furthermore  provides  that  the  in- 
terpretation of  the  law  relating  to  the  administration  of 
justice  falls,  in  last  instance,  under  the  authority  of  the 


ASIA  AND  AFRICA  25 

regular  Court  of  Cassation,  that  the  interpretation  of  ad- 
ministrative law,  i.  e.,  the  law  regulating  the  relations  be- 
tween the  officials  of  the  Government  and  the  subjects  of 
the  Sultan,  falls,  in  last  instance,  under  the  authority  of 
the  Privy  Council  of  the  Sultan,  and  that  the  interpreta- 
tion of  the  Constitution  falls,  in  last  instance,  under  the 
authority  of  the  Senate.  Now  the  members  of  the  Senate 
are  appointed  by  the  Sultan,  with  life  terms;  likewise  the 
Judges  of  the  Court  of  Cassation  and  of  all  the  Courts, 
with  life  terms;  while  the  Privy  Council  is  both  as  to  the 
appointment  and  dismissal  of  its  members  completely  sub- 
ject to  the  will  of  the  Sultan.  In  the  administration  of 
justice  between  individuals,  subjects  of  the  Sultan,  no  mat- 
ter what  their  religion  or  race,  the  independent  Judiciary 
has  the  final  word  and  must,  by  the  command  of  the 
Constitution,  accord  the  equal  protection  of  the  laws,  but 
when  it  comes  to  the  crucial  point,  the  relation  of  the 
Government  to  the  individual  subject,  then  we  see  the 
Liberty  of  the  subject  subordinated  entirely  to  the  Gov- 
ernment, and  indeed  to  the  Executive  branch  of  the  Gov- 
ernment. 

It  is  true  that  the  Constitution  declares,  that  in  consti- 
tutional questions  the  power  of  final  interpretation  shall 
be  exercised  by  the  Senate  and  the  members  of  the  Senate 
are  appointed  by  the  Sultan  for  life,  as  are  the  Judges  of 
the  Courts.  It  appears,  therefore,  as  if  the  Senate  occu- 
pies a  position  of  equal  independence  with  that  of  the 
Courts,  and  might  be  relied  upon  to  declare  a  statute  or 
any  provision,  even  though  found  in  the  Koran  or  the 
Multeka,  null  and  void  when  in  its  opinion  it  shall  con- 
flict with  any  provisions  of  the  Constitution.  It  must, 
however,  be  remembered  that,  as  to  new  statutes  passed 
under  the  present  Constitution,  the  Senate  would  have 


26  GOVERNMENT  AND  LIBERTY 

been  participant  in  the  enactment  of  the  same  and  would 
not,  therefore,  be  an  impartial  judge  in  their  interpreta- 
tion, when  called  in  question  by  an  individual  on  the  claim 
that  they  contravene  his  constitutional  immunities.  More- 
over, the  only  process  provided  whereby  an  individual  could 
bring  such  a  question  before  the  Senate  is  petition,  a  very 
poor  substitute  for  a  regular  judicial  proceeding,  and  finally 
the  Senate  does  not  possess  any  machinery  for  executing 
its  decisions  against  the  Executive  Government  in  behalf 
of  the  Immunities  of  the  Individual  from  governmental 
power.  The  constitutional  provisions  appear,  thus,  largely 
illusory  upon  this  most  important  question.  In  fact,  they 
seem  only  to  have  done  away  with  the  ancient  limita- 
tions of  the  Koran  and  the  Multeka,  interpreted  by  the 
independent  authority  of  the  Ulemas,  upon  autocratic 
power. 

To  the  genius  of  Asia,  the  solution  of  the  problem  of 
the  reconciliation  of  Government  and  Liberty  is  clearly 
extremely  difficult,  not  to  say  impossible  from  a  purely 
secular  point  of  view.  In  Asia  nothing  but  a  religion,  or, 
at  least,  a  universally  accepted  ethical  system,  interpreted 
authoritatively  by  a  priesthood  or  a  learned  class,  has 
seemed  able  to  place  any  limitations  upon  the  Asiatic  ten- 
dency to  despotism  in  Government;  and  when  the  Asiatic 
states  thus  constituted  come  into  contact  with  European 
political  civilization  the  only  effect,  from  this  point  of 
view,  seems  to  be  to  free  Government  from  the  limitations 
of  these  religions,  or  quasi-religions,  without  finding  any- 
thing of  a  secular  legal  character  to  substitute  for  them. 
In  other  words,  the  attempt  to  graft  a  European  govern- 
mental system  upon  a  Mohammedan  or  Confucian  popu- 
lation seems  to  have  for  its  results  the  establishment  of  a 
secular  despotism  and  the  destruction  of  the  national 


ASIA  AND  AFRICA  27 

religion  or  the  national  morals,  and  this  is  nothing  more  nor 
less  than  the  substitution  in  greater  or  less  degree  of  the 
police  powers  of  the  Government  for  the  religious  or  ethical 
conscience  of  the  subjects. 


CHAPTER  II 

THE   EFFORT  OF  AFRICA 

IF  Asia  has  done  little  toward  the  solution  of  the  great 
problem,  Africa  has  done  next  to  nothing.  Upon  the  vast 
African  Continent  of  twelve  million  square  miles  of  terri- 
tory, inhabited  by  one  hundred  and  fifty  millions  of  people, 
only  three  small  countries  containing  altogether  less  than 
five  hundred  thousand  square  miles  of  territory,  inhabited 
by  less  than  fifteen  millions  of  people,  can  be  in  any  sense 
called  independent  and  sovereign  states,  and  they  cannot 
in  any  full  and  sufficient  sense.  They  are  Abyssinia, 
Liberia,  and  Morocco. 

The  first  is,  in  some  degree  at  least,  under  the  joint 
protectorate  of  Great  Britain,  France,  and  Italy.  The 
second  is  a  protege  of  the  United  States,  and  the  third  is 
under  the  protectorate  of  France  and  Spain  or  rather  now 
of  France  in  reference  to  the  maintenance  of  the  public 
peace  and  order. 

Ten  millions  of  square  miles  of  the  African  Continent  are 
in  the  possession  of  the  European  states  as  Colonies  or 
Dependencies,  and  about  one  million  five  hundred  thou- 
sand square  miles  are  either  without  any  population  or  are 
inhabited  by  beings  in  a  condition  of  barbaric  anarchy. 

Of  the  three  countries  which  I  have  mentioned  as  quasi- 
sovereign  states,  one,  Liberia,  may  be  left  out  of  consid- 
eration, since  it  is  composed  chiefly  of  negroes  transported 
from  the  United  States  of  America  and  their  descendants, 
has  had  its  political  Constitution  made  for  it  by  the  Gov- 

28 


ASIA  AND  AFRICA 


29 


eminent  of  the  United  States,  and  as  a  state  is  only  a  feeble 
copy  of  its  great  model.  In  other  words,  Liberia  has  done 
nothing  of  itself  toward  the  solution  of  the  problem  of  the 
reconciliation  of  Government  and  Liberty.  We  will  con- 
fine our  attention  then  to  the  other  two. 

The  Abyssinian  Empire  is  one  of  the  oldest  states  of  the 
world.  It  was  ancient  Ethiopia  and  had  once  for  its  ruler 
the  famous  Queen  of  Sheba.  Its  inhabitants  were  con- 
verted to  Christianity  in  the  first  half  of  the  fourth  cen- 
tury, and  have  from  that  day  to  this  considered  themselves 
subject  to  the  patriarchate  of  Alexandria.  At  present  it 
occupies  chiefly  the  mountain  plateau  of  Eastern  Africa, 
with  an  area  of  some  two  hundred  thousand  square  miles 
of  fertile  soil,  under  a  salubrious  climate,  occupied  by 
about  ten  millions  of  inhabitants.  Some  of  the  conditions, 
at  least,  favorable  to  the  creation  of  a  civilized  state  are 
to  be  found  here.  Little  advantage,  however,  seems  to 
have  been  taken  of  them. 

We  know  a  little  of  the  activities  of  the  people  in  these 
regions  down  to  the  seventh  or  eighth  centuries,  and  after 
that  for  a  thousand  years  Ethiopian  darkness  settled  over 
them.  When  they  emerged  again  into  the  light  of  history, 
in  the  middle  of  the  nineteenth  century,  we  find  as  political 
institutions,  first,  the  Emperor,  or  Negus,  the  owner,  in 
theory,  of  the  entire  territory,  and  the  unlimited  Sovereign 
over  the  inhabitants  of  it,  but,  in  fact,  living  in  strict  re- 
tirement in  his  Imperial  abode,  exercising  almost  no  gov- 
ernmental power;  second,  the  Rases,  the  feudal  Lords  of 
the  provinces  which  had  been  conferred  in  fief  upon  them 
by  the  Emperor,  exercising,  in  fact,  unlimited  powers  over 
the  inhabitants  of  their  respective  provinces,  and  paying 
the  Emperor  a  small  tribute  and  furnishing  him  a  small 
contingent  of  armed  men;  and,  thirdly,  a  very  numerous 


30  GOVERNMENT  AND  LIBERTY 

priestly  class,  well  organized,  under  the  immediate  control 
of  a  native  Ecclesiastic  and  the  superior  control  of  the 
Christian  High  Priest  at  Alexandria,  or  Cairo,  and  exer- 
cising vast  influence,  religious  and  educational,  over  the 
people. 

Contact  with  the  outer  world  had  the  usual  result  of 
strengthening  the  central  power  over  against  the  local. 
The  European  states  recognized  only  the  authority  of  the 
Emperor,  and  the  Emperors  Theodore  Johannes  and  Men- 
elek  brought  the  feudal  Lords  under  greater  subordination 
and  created  several  new  instruments  of  Government.  The 
first  was  an  Army  of  Mercenaries  in  place  of,  or  rather 
alongside  of,  the  feudal  militia;  the  second  was  a  Minis- 
try of  five  Secretaries,  Foreign  Affairs,  Finance,  War,  Jus- 
tice, and  Commerce;  and  the  third,  a  Privy  Council  com- 
posed of  the  officials  of  the  Palace  and  the  Rases,  or  feudal 
Lords.  The  absolute  and  unlimited  power  of  the  Emperor 
in  all  respects  is  now  in  course  of  re-establishment  through 
these  means. 

The  one  institution  which  is  able  to  impose  limitations 
on  the  power  of  the  Emperor  or  that  of  the  feudal  Lords  is 
the  priestly  organization.  This  is  said  to  consist  of  nearly 
one  hundred  thousand  persons.  They  are  the  wise  men 
and  as  such  are  respected  and  revered  by  the  people.  They 
wield  an  influence  which  can  neither  be  ignored  nor  disre- 
garded. For  sometime  now  they  have  been  sustaining  the 
Emperor  against  the  feudal  Lords.  The  recent  attempt 
of  the  Emperor  Menelek,  however,  to  secularize  education, 
raised  up  hostility  which  may  greatly  hinder  the  develop- 
ment of  the  central  authority.  It  was  ill-timed.  For  a 
long  time  still  to  come  the  control  of  education  by  the 
Clergy,  the  Christian  Clergy,  will  be  for  the  welfare  of  the 
Empire.  If  the  Emperor  should  succeed  in  taking  this  out 


ASIA  AND  AFRICA  31 

of  their  hands  and  placing  it  in  the  hands  of  his  own  ap- 
pointees, it  is  easy  to  see  that  the  coming  generations  may 
be  and  probably  will  be  educated  out  of  the  idea  that  the 
Christian  priesthood  are  authorized  to  limit  the  Emperor's 
sovereignty  and  Government  by  the  rule  of  Christian  morals 
interpreted  by  them.  The  autocracy  of  the  Emperor  over 
the  priesthood  would  signify  the  complete  despotism  of  the 
Emperor  both  in  theory  and  practise  over  every  subject. 

In  Morocco,  we  reach  the  purest  type  now  extant  of  the 
Mohammedan  state.  The  Sultans  of  Morocco  claim  to 
be,  and  are  regarded  as  being,  the  descendants  of  the 
Prophet  himself.  They  regard  themselves  as  possessing 
both  the  spiritual  and  secular  power,  that  is,  complete 
sovereignty,  and  such  is  the  accepted  theory  of  this  system. 
Nevertheless,  there  are,  in  practise,  limitations  upon  their 
power,  which  give  the  subject  a  living  chance.  In  the  first 
place  they  must  create  and  maintain  the  physical  means 
for  the  realization  of  their  claimed  authority.  This  neces- 
sitates concessions,  at  least,  to  a  certain  part  of  the  sub- 
jects. In  theory,  the  Moroccoan  state  is  the  community 
of  believers  in  the  Koran  and  their  Caliph  is  sovereign.  In 
fact,  the  Sultans  have  created  a  ruling  class  within  the 
community  of  believers,  consisting  of  his  appointed  agents 
at  the  Court  and  in  the  localities,  his  mercenary  soldiers, 
and  those  upon  whom  he  or  his  predecessors  have  con- 
ferred landed  property  in  the  form  of  fief.  This  body  of 
men  constitute  the  physical  force  through  which  the  Sul- 
tan realizes  his  power  and  this  power  extends  really  only 
so  far  territorially  as  they  are  able  to  enforce  it.  In  order 
to  secure  the  loyalty  and  services  of  these  men,  the  Sultan 
frees  them  from  taxation  and  pays  most  of  them  a  sort  of 
salary  or  wage  besides.  It  is  from  this  body  also  that  he 


32  GOVERNMENT  AND  LIBERTY 

takes  his  governmental  agents,  and  it  is  this  body  which 
really  exercises  the  reserved  power  of  the  community  of 
believers  whenever  it  comes  to  such  action.  This  body, 
therefore,  may,  if  it  will,  curb  the  despotic  power  of  the 
Sultan,  as  well  as  maintain  it,  over  the  common  subject. 

Then  there  exists  the  College  of  Ulemas  at  Fez,  which 
claims  the  authority  of  ultimate  interpretation  of  the 
Koran,  the  precepts  of  which  the  Sultans  must  follow  in 
the  exercise  of  their  authority.  This  is  the  general  prin- 
ciple of  the  Mohammedan  state  wherever  it  has  existed  or 
still  exists.  According  to  the  Moroccoan  system  the  will 
of  the  Sultan  in  legislation,  administration,  and  judicial 
action  is  supreme,  and  all  of  his  decrees  and  decisions 
are  law,  but  if  he  ventures  to  violate  or  disregard  the  pre- 
scripts of  the  Koran,  as  interpreted  by  the  College  of  Ule- 
mas at  Fez,  then  this  body  claims  the  power — and  this 
power  is  accorded  to  it  by  the  common  tradition  of  the 
community  of  believers  in  the  Koran — of  admonishing  the 
Sultan  and,  in  case  the  violation  be  in  its  opinion  flagrant 
and  intolerable  and  the  admonition  be  disregarded,  of  ab- 
solving the  community  of  believers  from  its  loyalty  to  the 
Sultan  and  authorizing  the  community  to  dethrone  the 
Sultan;  and  since  this  reserved  sovereignty  of  the  com- 
munity of  believers  has  been  in  practise  usurped,  so  to 
speak,  by  the  ruling  class,  the  composition  of  which  has 
been  already  described,  the  power  of  dethroning  the  Sul- 
tan on  account  of  what  we  would  call  unconstitutional  ac- 
tion as  determined  by  the  College  of  Ulemas  may  be  exer- 
cised by  what  we  may  call  the  Imperial  Council  of  officials 
and  vassals.  It  is  indeed  true  that  the  Sultan  may,  in 
collusion  with  the  College  of  Ulemas,  really  violate  the 
principles  of  the  Koran  defensive  of  the  Liberty  of  his  sub- 
jects, and  rule  despotically,  since  this  College  is  considered 


ASIA  AND  AFRICA  33 

as  having  the  sole  power  of  determining  ultimately  whether 
the  acts  and  commands  of  the  Sultan  are  violative  of  the 
higher  law  of  the  Koran  or  not;  but,  again,  the  Ulemas  are 
independent  of  the  Sultan  in  their  tenures  and  they  and 
their  predecessors  have  built  up  a  tradition  in  their  inter- 
pretation of  the  Koran,  a  tradition  known  to  the  com- 
munity of  believers,  and  they  are  themselves  limited  by 
the  same  in  practise,  if  not  in  theory.  Historically,  the 
voice  of  the  Ulemas  is  sometimes  low  and  pleading  as  for 
mercy,  and  often  not  heard  at  all,  but  again  it  is  stern  and 
commanding,  and  the  Sultans  have  yielded  to  it.  Also, 
the  Sultans  often  consult  the  College  of  Ulemas  when  on 
the  point  of  undertaking  something  questionable  from  the 
point  of  view  of  the  higher  law  and  generally,  in  such  cases, 
follow  their  opinion. 

Turn  in  whatever  direction  we  may,  we  find  the  theo- 
retical despotism  of  the  Sultans  of  Morocco  working  under 
very  substantial  limitations  in  behalf  of  the  Liberty  of  the 
subject.  There  is  a  higher  law  than  the  will  of  the  Sul- 
tan, viz.:  the  Koran;  and  there  is  a  body  of  wise  men, 
independent  of  the  Sultan  in  their  position,  who  have  the 
power  of  ultimate  interpretation  of  the  prescripts  of  the 
Koran,  even  against  the  Sultan  himself,  and  the  power  to 
enforce  their  interpretations,  finally,  against  him  by  au- 
thorizing the  community  of  believers  to  dethrone  him.  It 
is  to  be  apprehended  that  the  introduction  of  European 
methods  and  influence,  now  in  process,  will  modify  this 
system  and,  while  it  may  bring  more  security  to  Christians, 
will  accord  less  of  Liberty  to  the  believers  in  Islam. 

It  will  thus  be  seen  that  the  effort  of  both  Asia  and 
Africa  to  solve  the  great  problem  of  the  reconciliation  of 
Government  and  Liberty  has  manifested  itself  more  clearly 
in  the  Mohammedan  states  than  elsewhere.  Had  the  sub- 


34  GOVERNMENT  AND  LIBERTY 

jects  of  these  states  been  wholly  Mohammedans  by  their 
own  choice  and  conviction  it  is  not  impossible  that  these 
states  may  have  gone  much  further  in  this  great  work  than 
they  have.  It  is  just  their  determination  to  extend  the 
rule  of  their  faith  by  the  sword  of  the  Prophet  which  has 
done  more  than  anything  else  to  hinder  their  progress  in 
this  most  fundamental  direction.  Unlimited  despotism 
over  the  non-Mohammedan  subject  tends  to  the  establish- 
ment of  the  same  sort  of  rule  over  the  Mohammedan  sub- 
ject. This  is  one  of  the  oldest  experiences  of  practical 
politics.  It  was  not  necessary  that  the  Mohammedan 
Governments  should  deny  to  their  non-Mohammedan  sub- 
jects the  same  Liberty  granted  to  their  Mohammedan  sub- 
jects, although  it  is  easily  conceivable  that  their  religious 
fanaticism  led  them  into  this  vicious  course.  The  Moham- 
medan system  contained  the  elements  for  considerable  de- 
velopment in  the  general  direction  of  modern  political 
progress.  Briefly  these  elements  were,  first,  the  sovereignty 
of  the  community  of  believers;  second,  the  interpretation 
of  the  principles  of  the  Koran  by  the  Ulemas;  and  third, 
Government  by  the  Sultan  or  Shah.  If  some  modern 
statesman  could  have  given  these  a  secular  turn,  it  would 
not  have  been  a  far  call  to  real  modern  constitutional 
Government  and  a  better  reconciliation  of  Government  and 
Liberty.  Let  us  hope  that  when  the  Turks  return  to  their 
Asiatic  home,  with  the  experience  of  their  European  so- 
journ, such  a  statesman  may  rise  among  them  and  make 
their  state  the  light  of  Western  Asia. 


BOOK  II 

THE  EFFORT  OF  EUROPE 
CHAPTER  I 

ANCIENT  GREECE 

THE  publicists  almost  universally  claim  that  real  polit- 
ical science  begins  with  the  Greeks,  and  that  with  the 
Greeks  self-conscious  man  first  attains  political  as  well  as 
philosophical  and  artistic  development.  The  Greeks,  they 
claim,  first  founded  the  state  upon  human  nature  and  made 
of  it  an  entirely  human  institution.  Plato  defines  it  to  be 
the  highest  revelation  of  human  virtue,  the  perfection  of 
mankind.  Aristotle  also  calls  man  a  political  being  and 
defines  the  state  as  the  community  of  its  citizens  in  the 
work  of  perfecting  human  existence;  founded  first  for  the 
security  of  human  life,  it  becomes  finally  the  great  organ 
of  human  welfare.  We  would  naturally  expect  that,  with 
such  development  of  political  thought,  a  system  of  prac- 
tical politics  ought  to  have  been  established,  which  would 
have  gone  far  in  solving  the  great  problem  of  the  reconcilia- 
tion of  Government  and  Liberty,  but  a  careful  and  critical 
study  of  the  political  history  of  the  Greeks  does  not  reveal 
anything  very  satisfactory  in  this  respect.  The  Greeks,  as 
all  the  peoples  of  antiquity,  confounded  the  state  with  the 
Government  and,  because  they  recognized  the  state  as  sov- 
ereign, made  Government  almighty.  In  other  words,  they 

35 


36  GOVERNMENT  AND  LIBERTY 

recognized  in  their  political  science  or  in  their  practical 
politics  no  sphere  of  Individual  Immunity  against  govern- 
mental power.  Consequently  they  did  not  even  recognize 
with  any  clearness  of  consciousness  the  problem  of  the 
reconciliation  of  Government  and  Liberty.  Nevertheless, 
the  careful  student  cannot  fail  to  discern  in  the  investiga- 
tion of  their  institutions  a  feeling  of  the  existence  of  this 
great  problem  and  a  groping  after  its  solution. 

Ancient  Greece,  as  every  one  knows,  was,  until  the  period 
of  the  Macedonian  supremacy,  in  the  middle  of  the  third 
century  before  the  Christian  era,  more  a  geographical  than 
a  political  term.  Territorial  Greece  was,  in  antiquity,  the 
home  of  a  number  of  independent  states,  sometimes  in 
partial  confederation,  sometimes  not.  These  states  the 
political  historians  generally  classify  according  to  two 
models,  the  one  Sparta  and  the  other  Athens,  the  one 
class  comprehending  what  they  term  the  oligarchies,  the 
other  the  democracies.  Without  adopting  either  the  no- 
menclature or  the  conclusions  of  these  historians  we  may 
accept  their  proposition  far  enough  to  justify  us  in  confin- 
ing our  attention  to  these  two  states  in  our  search  for  any 
evidences  of  the  consciousness  of  the  problem  of  the  recon- 
ciliation of  Government  and  Liberty  and  for  any  attempt 
to  solve  it. 

More  than  a  thousand  years  before  the  beginning  of  the 
Christian  era  a  migration  of  tribes  in  military  organiza- 
tion from  the  southern  spurs  of  the  Balkans  into  the  middle 
and  southern  portions  of  the  Greek  peninsula  seems  to  have 
taken  place,  similar  in  many  respects  to  the  Teutonic  mi- 
grations into  the  Italian  peninsula  nearly  fifteen  hundred 
years  later.  They  came,  that  is,  under  the  sole  and  un- 
limited command  or  Government  of  the  military  Chief,  the 
leader,  chosen  by  them  in  some  rude  way,  of  the  migration. 


THE  EFFORT  OF  EUROPE 


37 


mch  a  band  of  people  called  Dorians  penetrated  into  the 
lower  end  of  the  peninsula,  into  the  rich  valley  of  Lace- 
daemon,  and  there  under  the  shadow  of  Mount  Taggetus, 
on  the  bank  of  the  Eurotas,  built  their  huts  or  rather 
pitched  their  camp,  out  of  which  was  developed  the  city 
and  state  of  Sparta. 

The  Dorians  displaced  a  preceding  population,  driving 
some  of  them  back  upon  the  less  fertile  tablelands  which 
rose  out  of  the  valley,  or  subjecting  them  as  peasants  and 
slaves  to  work  the  soil  occupied  by  themselves  or  to  do 
the  menial  service  of  the  household.  These  movements 
determined  the  social  character  of  the  Spartan  Common- 
wealth. First  there  was  the  conquering  race,  then  the 
free  farmers  on  the  plateaus,  and  lastly  the  peasants  and 
slaves.  Only  the  first  class  constituted  the  political  people 
and,  as  we  have  said,  they  were  organized  about  their  mili- 
tary Chieftain  and  subject  to  his  unlimited  command.  Of 
course,  so  soon  as  the  Dorians  went  over  to  the  pursuits  of 
peace  the  military  organization  would  soon  be  felt  to  be 
unnatural  and  unbearable  and  limitations  upon  it  would 
be  demanded,  if  it  should  not  be  wholly  set  aside. 

The  reorganization  came  somewhere  about  the  middle 
of  the  ninth  century  before  Christ  and  is  connected  with 
the  name  of  Lycurgus.  This  Lycurgan  Constitution  con- 
tained three  chief  provisions.  First,  it  left  the  military 
Commander,  the  Duke,  as  Governor  in  peace,  as  King  with 
a  life  term,  and  with  a  tenure  which  probably  contained 
both  the  elements  of  hereditary  right  and  that  of  election 
by  the  "Gervasia,"  the  Senate  of  Elders.  Secondly,  it 
constructed  a  Senate  of  the  house  fathers,  the  heads  of 
families  of  the  ruling  race,  and  an  Assembly  of  all  male 
adult  Dorians.  The  King  was  still  Commander-in-Chief, 
but  was  recognized  as  the  administrator  of  law  and  justice 


38  GOVERNMENT  AND  LIBERTY 

personally,  and  through  his  own  appointed  agents,  while 
the  Senate,  with  the  approval  of  the  Assembly,  exercised 
in  an  illy  denned  way  what  we  may  call  the  legislative 
power,  and  the  power,  under  certain  limitations,  of  electing 
the  King. 

The  part  of  this  Constitution,  however,  pertinent  and 
important  to  our  inquiry  was  the  College  of  Ephors,  or 
overseers.  Unquestionably,  the  purpose  of  this  institution 
was  to  hold  the  Government  in  all  its  activities  within 
the  limits  of  ancient  custom.  The  College  consisted  of 
five  persons  chosen  by  the  Assembly  upon  nomination  by 
the  Senate,  i.  e.,  practically  chosen  by  the  Senate,  and  all 
officials  of  the  Government  both  civil  and  military,  even 
the  Eang  or  Kings — for  there  were  two  members  of  the 
Royal  House  considered  as  ruling  at  the  same  time — were 
subject  to  their  control.  This  practice  of  having  two  Kings 
in  Sparta  at  the  same  time  was  maintained  probably  for 
the  purpose  of  hindering  the  extreme  development  of  au- 
tocracy, but  it  was  the  College  of  Ephors  which  was  con- 
sciously designed  to  hold  the  Government  within  the 
bounds  of  constitutional  limitations  and  prevent  its  be- 
coming completely  despotic. 

Here  was  certainly  an  early  effort  to  reconcile  Govern- 
ment with  Liberty,  with  Liberty  as  expressed  in  ancient 
custom,  i.  e.,  as  expressed  in  folk  custom,  popular  custom. 
The  Ephors  were  probably  selected  for  their  knowledge  of 
this  custom  and  they  were  furnished  with  practically  un- 
limited authority  to  uphold  it.  It  was  certainly  a  dan- 
gerous pinnacle  of  power  upon  which  they  stood.  Had 
they  confined  themselves  to  the  task  of  protecting  the 
individual  citizen  of  Sparta  against  the  encroachments  of 
Government  upon  his  sphere  of  customary  Liberty,  the 
development  of  the  Lycurgan  Constitution  might  have 


THE  EFFORT  OF  EUROPE  39 

proceeded  very  far  and  have  reached  a  high  degree  of  po- 
litical civilization.  But  it  is  hardly  to  be  expected  that 
they  should  have  been  able  to  make  such  fine  distinctions. 
With  the  unlimited  power  of  control  over  all  governmental 
action,  it  is  quite  conceivable  how,  with  the  most  honest 
and  honorable  intentions,  they,  regarding  themselves  as 
the  representatives  of  the  people,  should  be,  it  may  have 
been  quite  unconsciously,  betrayed  into  usurpations  of  the 
powers  of  the  Government,  until  they  should  practically 
establish  an  oligarchy  of  the  most  despotic  character,  since 
no  constitutional  check  upon  them  had  been  created.  This 
was  exactly  what  happened.  Instead  of  being,  as  was 
originally  intended,  simply  a  check  upon  Government  in 
behalf  of  customary  rights,  this  College  or  Board  of  Ephors 
became  in  fact  the  Supreme  Government  of  the  state  and 
reduced  all  other  parts  of  the  Government  to  the  position 
either  of  agents  of  its  will  or  ratifiers  of  its  propositions. 
It  was  just  as  if  the  Supreme  Court  of  the  United  States 
should  ordain  the  enforcement  of  its  interpretations  of  so- 
cial conditions  and  requirements  as  law,  as  many  of  our 
advocates  of  so-called  "Social  Justice"  are  urging  it  to 
do,  instead  of  adhering  strictly  to  the  interpretations  of 
the  law. 

This  advance  of  the  College  of  Ephors  from  the  position 
of  a  Board  of  Control  to  that  of  actual  Government  was,  of 
course,  very  gradual  and  extended  through  a  long  period 
of  time.  For  decades,  yes  for  centuries,  the  Assembly  of 
citizens  was  not  conscious  of  it,  but  seemed  to  think  that 
the  Ephors  were  only  representing  the  growing  power  of 
the  citizens  against  the  Kings  and  their  Government.  It 
was  the  Kings,  if  anybody,  who  were  conscious  of  it,  but 
their  resistance  to  it  seemed  at  first  only  to  stiffen  the  sup- 
port of  the  Assembly  for  these  usurpations.  It  required 


40  GOVERNMENT  AND  LIBERTY 

nearly  five  hundred  years  of  this  development  to  bring  its 
real  nature  to  general  recognition.  In  the  third  century 
before  the  Christian  era,  King  Cleomenes  felt  himself  suffi- 
ciently sustained  by  what  we  may  call  general  opinion  to 
put  the  entire  body  of  Ephors  to  the  sword  and  abolish 
the  institution. 

With  this  event,  the  effort  of  Sparta  to  limit  Government 
in  behalf  of  Individual  Liberty  ceased  altogether.  The  fail- 
ure to  solve  this  great  problem  was  the  beginning  of  the 
end,  for  although  the  despotic  Government  might  for  a 
time,  and  even  in  consequence  of  its  despotic  power,  win 
victories  over  other  states,  yet  the  poison  had  entered  into 
the  veins  and  tissues  of  the  Spartan  Commonwealth  and 
was  bound  in  time  to  sap,  first,  the  strength  of  the  indi- 
vidual citizen  and  then  that  of  the  Commonwealth,  which 
is  only  the  totality  of  its  individual  members. 

The  Athenian  state  had  a  like  origin  and,  as  far  as  our 
problem  is  concerned,  made  a  somewhat  similar  develop- 
ment. An  Ionian  tribe  in  military  organization  under 
the  lead  of  a  chosen  Chief  settled  itself  down  upon  a  pre- 
ceding population  in  the  Attic  plain,  somewhere  about  one 
thousand  years  B.  C.  It  subjected  four-fifths  of  the  exist- 
ing population,  at  least,  to  slavery  and  drove  the  rest  back 
upon  the  higher  lands  surrounding  the  plain.  The  rude 
huts  of  military  occupation  built  by  this  tribe  upon  the 
plain  developed  into  the  City  of  Athens  and  the  tribe  it- 
self into  the  Athenian  Republic. 

The  first  political  change  after  the  settlement  was  in- 
duced by  the  transition  from  a  condition  of  war  and  migra- 
tion to  a  condition  of  comparative  peace.  The  members 
of  the  tribe  in  tribal  assembly  began  to  place  limitations 
upon  the  power  of  the  Chief,  whose  unlimited  authority 


THE  EFFORT  OF  EUROPE  41 

as  military  Commander  was  soon  felt  not  to  comport  with 
the  new  conditions  of  settlement  and  general  peace.  They 
first  took  away  from  the  King  his  priestly  functions  and 
changed  his  title  from  Basileus  to  Archon  to  emphasize 
the  fact  that  he  was  only  the  civil  or  secular  ruler.  They 
then  changed  his  tenure  from  hereditary  right  to  election 
and  his  term  from  one  for  life  to  one  for  ten  years.  Finally, 
they  divided  the  Royal  power  among  nine  Archons,  selected 
by  them  annually.  The  nine  Archons  wielded  together  the 
whole  power  of  the  state,  and  the  sole  defense  of  Liberty 
consisted  in  the  fact  that  they  did  not  act  together  as  a 
Board  or  College  or  Ministry,  but  separately.  Such  separate 
action,  however,  threatened  anarchy  in  the  Government. 

The  Athenians  were  some  four  hundred  years  in  accom- 
plishing these  results,  when  they  seemed  to  become  con- 
scious that  something  must  be  done  to  overcome  the 
disintegrating  tendency  of  the  nine-headed  Government. 
They  authorized  one  of  their  leading  men,  Draco,  to  codify 
the  laws  or  customs  for  the  guidance  of  the  Archons  and 
for  the  limitation  of  their  discretion  in  Government. 
The  Draconian  code  was  not  invented  by  Draco,  and  its 
severity  cannot  be  attributed  to  him  personally.  He  only 
gathered  together  in  a  compendium  what  already  existed. 
One  great  step,  however,  was  taken  in  connection  with 
the  promulgation  of  this  code,  whether  originated  by 
Draco  or  not.  It  was  the  establishment  of  a  Court  called 
the  Ephetae,  separate  from  and  independent  of  the  Archons, 
and  the  investment  of  this  body  with  supreme  criminal 
jurisdiction. 

These  reforms,  which  took  place  somewhere  about  six 
hundred  and  twenty-five  years  before  the  Christian  era, 
did  not,  however,  prevent  the  rise  of  a  demagogue  upon 
the  ground  of  the  popular  discontent,  who  made  the  at- 


42  GOVERNMENT  AND  LIBERTY 

tempt  to  establish  what  we  now  call  the  Caesaristic  democ- 
racy, one  Cylon.  He  failed,  however,  and  the  Athenian 
Nobles  confided  the  cause  of  reform  to  one  of  their  own 
number  who  had  won  already  great  reputation  for  himself 
as  a  man  of  judgment,  impartiality,  force,  and  patriotism, 
Solon. 

The  reform  of  the  Athenian  state  by  Solon,  somewhere 
about  six  hundred  years  before  the  beginning  of  the  Chris- 
tian era,  gave  to  the  Republic  its  most  substantial  institu- 
tions. Passing  by  his  economic  and  monetary  arrange- 
ments, his  political  reforms  consisted  of  four  general  crea- 
tions or  modifications  of  what  already  existed.  The  first 
was  the  classification  of  all  Athenian  citizens,  i.  e.,  of  all 
Athenians  having  any  political  rights,  into  four  classes  in 
accordance  with  the  amount  of  taxes  or  contributions  paid 
by  them  into  the  Treasury  of  the  state,  and  confining  eligi- 
bility to  the  Archonships  to  the  first  class  and  limiting  the 
political  privileges  of  the  fourth  class  to  voting  in  the  As- 
sembly. The  second  was  the  rejuvenation  of  the  Assem- 
bly so  that  it  became  the  real  lawmaking  power  of  the 
Republic  and  the  source  of  the  tenure  of  the  Archons,  as 
well  as  the  supreme  controlling  body  over  their  adminis- 
tration. The  third  was  the  creation  of  the  Council  of  the 
Four  Hundred,  its  members  chosen  annually  by  the  As- 
sembly, to  prepare  legislation  for,  and  introduce  it  into, 
the  Assembly.  The  fourth,  and  for  our  subject  far  the 
most  important,  was  the  transformation  of  the  Court  of 
the  Ephetae,  called  the  Court  of  the  Areopagus,  by  filling 
its  seats  with  those  outgoing  Archons  whose  administra- 
tion had  been  approved  by  the  Assembly,  and  by  confer- 
ring upon  it  a  general  power  of  censorship  over  the  acts 
of  the  Government  and  a  veto  upon  the  laws  which  vio- 
lated in  their  opinion  ancient  custom  or  sound  morals. 


THE  EFFORT  OF  EUROPE  43 

Here  was,  again,  quite  a  conscious  effort  to  reconcile 
Government  and  Liberty,  an  effort  which  might  have  suc- 
ceeded much  better  had  the  Court  of  the  Areopagus  con- 
fined its  vetoes  to  laws  and  administrative  acts  contraven- 
ing the  customary  Civil  Liberty  of  the  citizen  and  subject. 
So  far  as  we  know,  it  made  no  such  sound  distinction, 
and  the  Solonian  Constitution  did  not  last  half  a  cen- 
tury before  the  cry  was  raised  against  it  that  it  was  plu- 
tocratic. 

It  was  natural  that  this  feeling  should  produce  a  dem- 
agogue and  be  taken  advantage  of  by  a  demagogue. 
About  560  B.  C.  he  appeared,  Pisistratus,  at  the  head  of 
the  Highlanders,  the  poorest  of  the  citizens  of  Athens,  and 
in  a  struggle  of  fifteen  years  he  overthrew  the  Government 
under  the  Solonian  Constitution,  and  for  eighteen  years, 
until  his  death,  reigned  and  ruled  as  the  Tyrant  of  Athens. 
The  historians  agree  that  he  governed  benevolently  and 
beneficently.  It  was  his  son,  Hippias,  who  succeeded  him 
in  527  B.  C.,  through  whom  the  real  nature  of  the  tyranny, 
the  democratic  Caesarism,  came  to  full  manifestation. 
The  Spartan  state,  seeing  its  own  demoralization  in  the 
triumph  of  this  pseudodemocracy  in  Athens,  now  inter- 
fered and,  in  the  year  510  B.  C.,  or  thereabout,  drove  the 
house  of  Pisistratus  out  of  Athens. 

In  the  struggle  which  now  followed  between  the  Nobles, 
the  middle  class,  and  the  proletariat,  the  middle  class,  led 
by  Clisthenes,  won  the  day.  The  reforms  now  introduced 
by  Clisthenes  developed,  according  to  the  ideas  of  Herod- 
otus, the  genuine  Athenian  democracy.  He  abolished 
the  social  and  political  classification  of  Solon  and  divided 
the  whole  citizenship  of  Athens  without  regard  either  to 
birth,  blood,  or  wealth  into  ten  tribes  upon  a  territorial 
basis.  He  increased  the  number  of  the  Solonian  Council 


44  GOVERNMENT  AND  LIBERTY 

from  four  hundred  to  five  hundred  members,  fifty  being 
elected  from  and  by  each  of  the  ten  tribes.  The  Court  of 
the  Areopagus  was  left  as  before  and,  of  course,  the  Archon- 
ship;  but  new  popular  Courts,  consisting  of  citizens,  were 
instituted,  in  which  speedy  and  inexpensive  justice  in  mi- 
nor cases  could  be  secured.  Sparta  again  objected  to  this 
democratic  development  and  King  Cleomenes  again  in- 
vaded Attica  and  drove  out  Clisthenes  and  his  following. 
Isagoras,  the  leader  of  the  Aristocratic  faction,  was  made 
Archon  and  many  of  the  democratic  leaders  were  banished. 
This  provoked  a  popular  insurrection,  which  momentarily 
restored  Clisthenes,  only  to  be  driven  out  again  by  Cle- 
omenes. By  this  time,  however,  the  Spartan  opposition  to 
the  democratic  development  in  Athens  had  largely  spent 
itself  and  Athens  was  left,  at  last,  about  500  B.  C.,  to 
follow  its  own  course. 

For  the  next  twenty-five  years  the  Republic  was  engaged 
in  the  great  war  with  Persia,  the  influence  of  which  over 
the  internal  situation  was,  as  is  practically  always  the  case, 
the  increase  of  the  power  of  the  Government  at  the  ex- 
pense of  Individual  Liberty;  and  the  final  triumph  of  the 
Greeks  only  increased  this  tendency.  The  services  ren- 
dered by  the  lower  classes,  or  rather  poorer  classes,  of  the 
Athenian  citizens  in  this  struggle  led  to  the  members  of 
these  classes  being  made  eligible  to  the  highest  office  in 
the  Government,  the  Archonship,  upon  proposition  of 
Aristides  himself.  Another  important  result  of  the  change 
of  spirit  in  the  Athenian  Republic  brought  about  by  the 
triumph  over  Persia  was  the  haughty  supremacy  and 
domination  which  Athens  now  assumed  over  her  confed- 
erates. The  Delos  Confederation,  as  the  league  between 
Athens  and  her  Greek  allies  was  termed,  was  transformed 
into  the  Athenian  Empire  by  the  exercise  of  military  force, 


THE  EFFORT  OF  EUROPE  45 

and  the  independent  Governments  of  these  allies  were  re- 
duced to  dependencies  of  Athens. 

This  was  the  situation  in  Athens  when  Pericles  came  to 
the  front  as  the  leader  of  the  democracy.  His  personality 
dominated  nearly  everything  from  the  beginning  of  his 
career.  He  was  a  philosopher,  an  orator,  a  statesman,  an 
astute  politician,  a  great  soldier,  and  a  great  patron  of  art 
all  combined — the  ideal  Caesar.  He  flattered  the  people. 
He  distributed  the  public  money  among  the  poor.  He  in- 
troduced the  system  of  paying  for  all  official  service,  in 
order  to  enable  the  poorer  classes  to  occupy  office.  Plato 
evidently  regarded  him  as  a  first-class  demagogue  and  as 
a  corrupter  of  the  Athenian  people.  Plato  declares  out- 
right that  he  rendered  them  lazy,  avaricious  gossip-mon- 
gers. Early  in  his  great  career  he  attacked  the  Court  of 
the  Areopagus  as  an  aristocratic  institution,  consisting  as 
it  did  of  the  retiring  Archons,  after  approved  administra- 
tive activity,  holding  for  life  and  exercising  the  power  of 
controlling  the  administration  of  the  Archons  and  vetoing 
legislation  which  in  their  opinion  violated  the  customary 
Liberty  of  the  people  or  sound  morals.  Through  his  impas- 
sioned appeals  to  the  people  against  this  great  Court,  Per- 
icles finally  succeeded,  by  popular  support  in  the  Assembly 
and  out  of  it,  in  destroying  these  great  conservative  powers 
and  in  reducing  this  Court  to  a  mere  criminal  tribunal. 
With  this  the  great  balance-wheel  of  the  Athenian  Consti- 
tution was  discarded  and  personal  Government  ruled  un- 
hindered. Pericles  himself  exercised  his  vast  despotic 
power  with  wisdom,  success,  and  moderation,  but  he  had 
no  Pericles  for  his  successor. 

The  death  of  Pericles,  in  429  B.  C.,  was  in  reality  the 
close  of  the  brilliant  period  in  Greek  history  which  bears 
his  name.  After  him  the  despotism  of  the  Government, 


46  GOVERNMENT  AND  LIBERTY 

which  he  had  established,  continued  unchecked  and  re- 
duced the  Athenian  people  more  and  more  to  the  condi- 
tion of  idle,  deceitful,  self-respectless,  gossiping  paupers 
and  beggars,  and  the  great  and  promising  effort  of  the 
Athenian  state  to  solve  the  momentous  problem  of  the 
reconciliation  of  Government  and  Liberty  had  exhausted 
itself  permanently.  I  say  the  promising  effort,  because  the 
Court  of  the  Areopagus  must  be  regarded  as  having  been 
in  its  composition  and  powers  better  calculated  to  solve 
this  problem  than  the  Spartan  College  of  Ephors.  In  the 
first  place,  its  membership  was  larger  and  contained  the 
best  wisdom  and  experience  of  the  Republic,  the  retiring 
Archons  whose  administrations  had  been  approved  by  the 
Assembly  and  by  public  opinion ;  and,  in  the  second  place, 
it  did  not  usurp  governmental  power  itself,  as  did  the 
College  of  Ephors,  but  confined  itself  to  limiting  the  powers 
of  Government  by  the  rule  of  ancient  custom  and  good 
morals.  The  imperfections  in  this  order  of  things  were 
that  it  did  not  provide  for  the  development  of,  or  changes 
in,  ancient  custom  and  made  the  Court  of  the  Areopagus 
the  supreme  interpreter  of  morals  as  well  as  law.  In  other 
words,  the  powers  of  this  Court  as  interpreter  of  the  Con- 
stitution went  too  far,  or  perhaps  it  would  be  more  intelli- 
gible to  say  that  the  Constitution  was  too  uncertain,  since 
it  was  in  theory  the  code  of  morals  and  of  customs  of  the 
Athenians.  This  uncertainty  opened  too  wide  a  realm  for 
interpretation  by  the  Court  of  the  Areopagus.  It  gave  this 
Court  really  too  much  control  over  the  development  of 
law  and  custom,  and  the  general  consciousness  of  this 
situation  which  gradually  developed  enabled  the  skilful 
Pericles  to  create  a  powerful  popular  hostility  to  the  Court, 
which  finally  deprived  it  of  its  power  of  limiting  the  actions 
of  the  Government  within  the  bounds  of  good  morals  and 


THE  EFFORT  OF  EUROPE  47 

ancient  custom.  If  the  Athenian  politics  had  provided  a 
sovereign  back  of  both  the  Court  and  the  Government, 
which  should  have  drawn  and  redrawn,  from  time  to  time, 
the  line  between  the  functions  of  the  Government  and  the 
Liberties  of  the  Individual,  and  have  empowered  the  Court 
to  hold  each,  by  its  interpretations,  within  its  constitutional 
sphere,  then  might  the  Court  have  lived  and  maintained 
its  great  powers  of  constitutional  interpretation  and  the 
Government  have  been  restrained  by  it  from  becoming 
despotic.  As  it  was,  however,  with  the  Athenian  people 
acting  immediately  as  the  Legislature,  a  conflict  between 
the  Court  and  the  Government  could  end  only  one  way. 
The  Athenian  people  could  not  distinguish  between  their 
sovereign  act  investing  the  Court  with  its  wide  powers  of 
interpretation  and  their  ordinary  legislative  act,  but  under 
the  influence  of  the  eloquent  sophistry  of  Pericles  came  to 
view  the  functions  of  the  Court  as  usurpations  of  a  power 
over  the  people. 

When,  now,  all  the  Greek  states  became,  about  four  hun- 
dred and  thirty  years  before  the  beginning  of  the  Christian 
era,  simply  despotic  Governments,  i.  e.,  unlimited  Govern- 
ments, Governments  which  were  sovereign  over  against 
the  citizen  and  the  subject,  then  the  possibility  in  logical 
thought  for  the  creation  of  a  federal  system  of  Govern- 
ment including  all  of  the  Greek  states  was  destroyed,  be- 
cause for  the  establishment  of  such  a  system  the  organiza- 
tion of  a  National  sovereignty  back  of,  and  supreme  over, 
all  these  states  was  the  prime  necessity,  which  should  have 
created  a  National  Constitution  of  Government  and  Liberty 
and  a  central  Government,  and  have  distributed  the  powers 
of  Government  between  the  central  Government  and  the 
original  states.  In  the  absence  of  such  a  conception  in  the 
system  of  each  of  the  states,  it  could  not  exist  for  the  or- 


48  GOVERNMENT  AND  LIBERTY 

ganization  of  the  Greek  Nation.  Consequently  the  only 
alternatives  were  that  the  Greek  states  should  remain  en- 
tirely independent  of  each  other,  or  form  interstate  leagues 
or  confederations,  or  that  one  of  them  should  subject  the 
others  to  itself  and  make  them  dependencies,  or  finally 
that  a  foreign  power,  both  nationally  and  politically,  should 
come  in  and  establish  its  empire  over  them  all. 

Twenty-five  years  of  struggle  between  Athens,  Sparta, 
and  Thebes  for  the  ascendancy  now  followed  with  no  con- 
structive result;  then  sixty-five  years  of  consequent  ex- 
haustion and  indifference  opened  the  way  for  the  barbaric 
military  Monarchy  of  Macedon  to  subject  them  all  to  its 
despotic  rule,  which  expended  itself  and  the  whole  politi- 
cal capacity  of  the  Greeks  during  the  next  two  centuries 
and  made  them  all  the  prey  of  the  foreigner.  The  politi- 
cal centre  of  Europe  and  the  world  had  moved  westward 
and  was  now  constructing  the  system  of  the  great  World- 
Empire  of  Rome,  and  to  that  we  must  now  look  for  fur- 
ther advancement  toward  the  solution  of  the  great  prob- 
lem of  the  reconciliation  of  Government  and  Liberty. 


CHAPTER  II 

THE  EFFORT  OF  ANCIENT  ROME 

THE  earliest  political  situation  in  Rome  of  which  we 
have  any  credible  historical  account  was  one  presenting 
as  political  institutions:  first,  the  Kingship  exercising  all 
the  powers  of  Government  of  whatever  nature;  second, 
the  Senate  of  Elders,  the  heads  of  the  leading  families; 
and  third,  the  Comitia  Curiata.  The  Comitia  Curiata  was 
an  assembly  of  all  the  members  of  the  thirty  curiae  of 
Rome.  The  curia  was  a  body  of  territorial  neighbors  wor- 
shipping under  a  common  priest  and  around  a  common 
hearth.  Of  course,  only  the  freemen  among  these  ap- 
peared as  members  of  the  Comitia  Curiata.  The  functions 
of  the  Senate  and  the  Comitia  Curiata  were  not  those  of 
Government,  but  the  prevention  of  arbitrary  Government 
by  the  King  and  the  election  of  the  King.  The  Senate 
protected  the  rights  and  privileges  of  the  Patrician  class 
and  the  Comitia  Curiata  those  of  the  common  freemen. 
So  long  as  the  Senate  and  the  Comitia  Curiata  did  not 
participate  in  the  Government,  they  constituted  a  check 
upon  Government  in  behalf  of  Liberty  which  was  decidedly 
effective.  The  Senate  gave  the  King  counsel,  and  he 
could  make  no  law  which  was  valid  against  the  veto  either 
of  the  Senate  or  of  the  Comitia  Curiata. 

Under  this  form  Rome  progressed  for  nearly  two  cen- 
turies, adding  populations  which  were  neither  represented 
in  the  Senate  nor  in  the  Comitia  Curiata,  when  the  sixth 
King,  Servius  Tullius,  added  a  new  institution,  first  as  a 

49 


50  GOVERNMENT  AND  LIBERTY 

new  system  of  military  organization,  and  then  as  a  political 
organization.  It  was  termed  the  Comitia  Centuriata. 
Briefly  it  was  constructed  by  dividing  the  entire  arms- 
bearing  population  into  centuries,  i.  e.,  bodies  of  one  hun- 
dred men,  of  which  there  were,  at  the  time  of  Servius  Tul- 
lius,  some  two  hundred  centuries  or  twenty  thousand  men. 
These  centuries  contained  the  whole  population,  Patrician 
as  well  as  Plebeian,  and  were  arranged,  as  to  the  order  in 
which  they  stood  and  as  to  the  arms  they  bore,  according 
to  their  wealth  and  position  in  the  society.  As  afterward 
assembled  in  the  Comitia  Centuriata  they  voted  in  a  ratio 
depending  on  these  same  distinctions.  The  Senate  and 
the  Comitia  Curiata  were  Patrician,  being  composed  of  the 
original  families  of  the  city,  but  the  Comitia  Centuriata 
contained  all  free  Plebeians  as  well  as  the  Patricians  and 
the  inhabitants  of  the  country  districts  as  well  as  of  the  city 
proper. 

This  new  Comitia  participated  in  the  Government  no 
further  than  did  the  Senate  and  the  Comitia  Curiata.  It 
was  simply  a  popular  check  upon  the  King's  Government. 
It  can  hardly  be  considered  as  having  been  a  genuine  pop- 
ular check  since,  as  we  have  seen,  it  contained  Patricians 
as  well  as  Plebeians,  and  the  Patricians  had  the  greater 
weight  in  the  determinations  of  the  body.  The  King's 
Government  was  now  held  in  check  by  the  three  bodies, 
the  Senate,  Comitia  Curiata,  and  Comitia  Centuriata,  in 
all  of  which,  however,  the  Patricians,  the  descendants  of 
the  families  of  the  original  settlers,  held  either  the  exclu- 
sive power  or  the  balance  of  power. 

Quite  naturally  the  later  Kings  showed  tendencies  of 
favoring  the  Plebeians,  not  only  from  a  sense  of  justice, 
but,  also,  for  the  political  purpose  of  gaining  the  support 
of  the  Plebeians  against  the  Patricians.  When  this  ten- 


THE  EFFORT  OF  EUROPE 

w 

dency  became  pronounced  and  persistent,  the  Patricians 
seized  the  first  promising  opportunity  to  abolish  the  King- 
ship and  set  up  the  Republic,  i.  e.,  Government  by  the  Sen- 
ate and  Comitiae.  Instead  of  the  Senate  and  the  Comitiae 
being  now  checks  upon  Government  in  behalf  of  Liberty 
they  became  the  Government,  the  whole  Government,  and 
the  unlimited  Government  for  the  moment.  Two  Consuls, 
chosen  annually  by  the  Comitia  Centuriata,  from  among 
the  Patrician  order,  and  ratified  as  to  their  choice  by  the 
Senate  and  the  Comitia  Curiata,  were  the  executive  power 
and  as  such  not  only  executed  the  law,  but  appointed  all 
the  other  officials,  or  Magistrates,  as  the  officials  were 
termed  in  the  Roman  law,  the  Senate  and  the  Comitiae 
making  the  law,  in  such  form,  however,  and  according  to 
a  procedure  which  made  the  Senate  appear  as  the  final 
sanction-giving  body  and  the  others  as  initiating  or  con- 
senting bodies. 

As  I  have  said,  the  Patrician  order  dominated  not  only 
the  Senate,  but  also  the  two  Comitiae,  and  the  Plebeians 
very  soon  began  to  feel  the  necessity  for  a  check  upon 
Government  by  the  Patrician  order.  The  first  recogni- 
tion of,  and  concession  to,  their  demand  for  such  a  check 
was  in  the  form  of  a  law,  the  Lex  Valeria  of  the  year  509 , 
the  first  year  of  the  Republic,  which  provided  that  no 
Magistrate  should  execute  a  capital  sentence  upon  a  Roman 
citizen  until  the  same  should  have  been  ratified  by  the 
Comitia  Centuriata. 

But  this  was  in  two  respects  insufficient.  First,  the 
Patricians  held  the  balance  of  power  in  the  Comitia  Cen- 
turiata, and,  second,  there  was  no  power  except  that  of  the 
Patrician  Consuls  and  their  appointees  to  execute  the  law 
or  the  decisions  of  the  Comitia.  In  order  to  remedy  these 
defects  the  Plebeians  took  matters  into  their  own  hands. 


52  GOVERNMENT  AND  LIBERTY 

In  the  year  493,  on  return  from  a  victorious  campaign,  the 
Plebeian  soldiery,  the  stock  and  stuff  of  the  Army,  with- 
drew from  the  city  and  occupied  Mons  Sacer,  some  three 
or  four  miles  away,  and  threatened  to  frame  there  their 
own  state  and  Government,  if  their  demands  should  be 
disregarded.  Under  this  pressure  the  Patricians  gave  way 
and  agreed  to  the  creation  of  Tribunes  of  the  Plebeians, 
with  the  power  of  protecting  a  citizen  against  the  arbitrary 
acts  of  any  Magistrate.  This  concession  is  known  in  Roman 
history  as  the  Lex  Sacrata. 

These  Tribunes,  at  first  only  two  in  number  and  grad- 
ually increased  during  the  next  fifty  years  to  ten,  were  not 
originally  Magistrates  or  governmental  officials.  They 
simply  interfered  personally  between  a  Magistrate  and  a 
citizen  on  application  of  the  latter,  and  protected  the  citi- 
zen against  the  exercise  of  arbitrary  power  over  him  by  a 
Magistrate;  and  by  the  vetus  jusjurandum,  the  oath 
sworn  between  the  Patrician  class  and  the  Plebeians  in 
accordance  with  the  Lex  Sacrata,  a  curse  of  the  Gods  rested 
upon  any  violator  of  the  person  of  a  Tribune. 

It  was  entirely  natural,  however,  that  the  Tribunes 
themselves  should  seek  to  organize  in  their  support  some 
more  reliable  force  than  the  curse  of  the  Gods,  especially 
when  the  interpretation  of  the  will  of  the  Gods  was  in  the 
hands  of  Pontiffs  and  Augurs  appointed  by  the  Patrician 
Consuls  from  the  Patrician  class.  The  Tribunes  soon  be- 
gan, therefore,  to  gather  the  Plebeians  in  assemblies,  in 
what  was  termed  in  the  Latin  vernacular  Conciliae  Plebis, 
and  out  of  these  Conciliae  Plebis  was  gradually  developed 
the  later  powerful  Comitia  Tributa,  with  its  power  to  limit 
the  action  of  the  Government  in  every  direction,  and  to 
elect  the  Tribunes  and  vest  them  with  the  power  of  exe- 
cuting the  decisions  and  resolutions  of  the  Comitia  Tributa. 


THE  EFFORT  OF  EUROPE 


53 


By  the  law  called  the  Lex  Publilia  of  the  year  471  B.  C., 
this  new  institution  was  legally  recognized  as  a  part  of  the 
Roman  Constitution. 

There  was  still,  however,  a  weak  place  in  the  Constitu- 
tion: Who  should  say  when  a  Magistrate  was  acting  arbi- 
trarily? If  the  Magistrate  himself  or  the  Senate  or  the 
Comitia  Curiata  or  the  Comitia  Centuriata,  where  was  the 
defense  for  the  Plebeian?  If  the  Tribune  or  the  Comitia 
Tributa,  where  was  the  power  of  the  Government  ?  It  was 
evident  that  the  fundamental  principles  of  Individual  Im- 
munity against  governmental  power  must  be  agreed  upon 
and  reduced  to  a  written  form.  Tribune  Terentilius  Arsa 
made  this  demand  of  the  Government  in  the  year  460  B.  C. 
After  ten  years  of  struggle  the  Plebeians  secured  this,  but 
were  obliged  to  agree  to  having  these  fundamental  prin- 
ciples formulated  by  ten  Patricians  instead  of  by  ten  Ple- 
beians as  Arsa  had  demanded.  These  ten  Patricians, 
called  in  Roman  history  the  first  Decemvirate,  were  chosen 
by  the  Comitia  Centuriata  to  govern  absolutely  for  one 
year  and  at  the  same  time  to  produce  this  Bill  of  Rights, 
so  to  speak.  Their  work  is  the  document  known  in  Roman 
history  as  "The  Twelve  Tables."  Quite  curiously  and  in- 
terestingly the  provisions  of  these  Twelve  Tables  may  be 
distinguished  under  three  heads:  first,  a  sphere  of  individual 
self-help,  or  absolute  Immunity  from  governmental  power; 
second,  the  provisions  fixing  due  process  of  law;  and,  third, 
those  securing  the  equal  protection  of  the  laws.  All  these 
provisions  became  part  of  the  Constitution  in  the  usual 
way,  viz. :  by  vote  of  the  Comitiae  and  the  sanction  of  the 
Senate. 

Here,  then, was  the  most  complete  solution  of  the  problem 
of  the  reconciliation  of  Government  and  Liberty  which  the 
world  had  down  to  that  time  produced,  viz.:  a  written 


54  GOVERNMENT  AND  LIBERTY 

Constitution  of  Individual  Liberty  and  Immunity  against 
governmental  power  and  an  organization,  outside  of  the 
Government,  of  those  to  be  protected  in  the  enjoyment  of 
such  Liberty  with  the  power  in  their  own  elected  Tribunes 
to  execute  these  provisions,  according  to  their  own  inter- 
pretation, in  behalf  of  the  Individual  against  the  Govern- 
ment. The  danger,  or  perhaps  we  had  better  say  the  pros- 
pect, was  now  that  the  Tribunes  would  tie  the  Government 
down  too  tightly.  The  Patricians  felt  this  and  undertook 
to  frustrate  it  by  voting  to  continue  the  Decemvirate  of 
Patricians,  and  brought  on  a  struggle  with  the  Plebeians 
for  the  restoration  of  the  Consuls  and  the  old  order  of  Mag- 
istrates in  which  the  Plebeians  again  won  their  contention. 
By  this  time,  about  450  B.  C.,  through  conquest,  exten- 
sion, and  annexation,  Rome  had  advanced  its  jurisdiction 
so  far  around  the  original  city  that  there  were,  accord- 
ing to  the  Roman  historians,  some  twenty-one  tribes,  in 
only  four  of  which,  the  original  ones,  were  there  any  con- 
siderable number  of  the  Patrician  order,  if  any  at  all.  The 
seventeen  newer  tribes  contained  a  vast  Plebeian  power, 
which  now  really  held  the  fate  of  the  Roman  Republic  in 
its  hands.  It  is  quite  explicable  that  the  Plebeians  would 
not  now  be  satisfied  with  the  mere  defense  of  their  Civil 
Rights  against  the  arbitrariness  of  Government,  but  would 
seek  a  full  participation  in  Government  itself.  If  they  had 
been  good  political  scientists  they  would  have  left  their 
Comitia  Tributa  and  their  Tribunes  independent  of  the 
responsibilities  of  Government,  as  constitutional  protectors 
of  Civil  Liberty,  and  have  sought  to  reform  the  Comitia 
Centuriata  so  as  to  have  taken  the  balance  of  power  therein 
from  the  Patricians,  and  would  have  demanded  eligibility 
to  all  the  offices.  It  is  quite  intelligible,  however,  that,  in 
the  absence  of  such  scientific  reasoning,  and  with  the  over- 


THE  EFFORT  OF  EUROPE  55 

whelming  volume  of  physical  power  present  in  the  Comitia 
Tributa,  the  Plebeian  leaders  should  have  sought  to  make 
this  body  and  their  chosen  Tribunes  parts  of  the  Govern- 
ment. 

The  first  success  which  they  scored  in  this  undertaking 
was  to  secure  the  recognition  of  the  resolutions  of  their 
Comitia  Tributa  as  being  binding  upon  the  Patricians  as 
well  as  upon  the  Plebeians.  The  Patricians  were  able, 
however,  at  first  to  modify  the  effect  of  this  by  imposing 
the  principle  that  the  Senate  must  sanction  the  plebiscita, 
before  they  could  be  regarded  as  law.  In  other  words,  the 
Plebeians  won,  at  first,  only  the  right  to  initiate  legislation 
through  the  Comitia  Tributa.  This  came  to  pass  about 
449  or  448  B.  C. 

Then  came  the  struggle  over  the  eligibility  of  Plebeians 
for  the  Consulship.  It  was  proposed  first  about  the  year 
445  B.  C.,  by  Tribune  Caius  Canuleius.  The  Patricians 
sidetracked,  so  to  speak,  this  proposition  by  enacting  in  the 
bodies  controlled  by  them,  viz.:  the  Senate,  the  Comitia 
Curiata,  and  the  Comitia  Centuriata,  a  law  that  for  the 
next  six  years  there  should  be,  instead  of  the  two  Consuls 
as  the  chief  Magistrates,  six  Military  Tribunes  with  con- 
sular power,  and  that  Plebeians  should  be  eligible  to  these 
offices.  The  Plebeians  accepted  this  substitution  with  a 
very  bad  grace,  and  while  securing  the  election  of  members 
of  their  order  to  the  Consular  Tribuneships  still  struggled 
on  for  the  restoration  of  the  Consulship  and  the  eligibility 
of  Plebeians  to  the  high  office.  For  more  than  seventy- 
five  years  this  conflict  was  waged  when  finally  by  the  Lex 
Licinia  of  the  year  367  B.  C.,  or  thereabout,  the  Plebeian 
contention  became  the  constitutional  law  of  the  Republic. 

Of  course,  with  eligibility  to  the  highest  office  conceded, 
that  to  all  other  Magistracies  quickly  followed.  There  re- 


56  GOVERNMENT  AND  LIBERTY 

mained  now  only  the  work  of  freeing  the  resolutions  of  the 
Comitia  Tributa  from  the  necessary  sanction  of  the  Senate 
in  order  to  become  law,  and  the  Republic  would  be  tri- 
umphantly democratized.  This  required  another  seventy- 
five  years  of  struggle.  It  was,  however,  bound  to  come, 
and  after  about  286  B.  C.  the  plebiscita  of  the  Comitia 
Tributa  became  law  without  the  sanction  of  the  Senate. 

The  Comitia  Tributa  and  its  Tribunes  were  now,  however, 
parts  of  the  Government.  They  had  abandoned  their 
high  constitutional  position  of  independent  defenders  of 
Civil  Liberty  against  the  encroachments  and  arbitrariness 
of  the  Government,  and  now  again,  consequently,  the  indi- 
vidual citizen  or  subject  had  nothing  except  the  benev- 
olence of  Government  to  which  to  appeal  for  his  protection. 
In  the  abandonment  of  its  original  position  by  the  Co- 
mitia Tributa  the  ground  was  being  prepared  for  Imperial- 
ism. With  such  a  system  of  Government  it  was  that 
Rome  now  entered  upon  the  conquest  of  the  world  outside 
of  Italy.  For  a  hundred  and  twenty-five  years  after  265 
B.  C.  she  was  engaged  chiefly  in  this  work,  which  extended 
her  confines  from  the  Euphrates  on  the  East  to  the  Atlan- 
tic Ocean  on  the  West,  and  from  the  Danube  on  the  North 
to  the  African  Desert  on  the  South. 

The  question  which  rises  uppermost  in  the  mind  of 
every  political  scientist  and  practical  statesman  in  con- 
templating this  great  fact  is:  How  could  Rome  accomplish 
this  stupendous  task  under  a  form  of  Government  which 
was  hardly  fitted  for  a  municipality  of  one  hundred  thou- 
sand inhabitants?  With  this  system  of  divided  authority 
between  Patrician  Senate  and  Plebeian  Comitia  Tributa, 
with  no  organized  body  to  settle  differences  between  them, 
and  of  double-headed  Executive,  how  could  the  Govern- 
ment manage. the  problems  of  diplomacy,  conquest,  and 


THE  EFFORT  OF  EUROPE  57 

the  control  of  allies  and  subjected  peoples?  The  answer 
is  that  it  simply  did  not  do  it.  While  no  formal  transforma- 
tions took  place  in  the  customary  Constitution,  the  work- 
ing of  the  Government  changed  profoundly.  In  a  word, 
the  Senate  became  the  whole  Government  practically,  and 
the  Magistrates  and  military  Commanders  became  its 
agents.  This  was  inevitable  under  the  conditions  of  war 
and  conquest.  There  must  be  some  one  central  undisputed 
authority  from  which  all  Government  should  radiate  to 
meet  and  solve  the  problems  to  which  this  condition  gave 
rise.  It  could  not  be  the  Comitia  Tributa.  This  body 
was  so  numerous  and  irregular  and  had  so  little  consensus 
of  opinion,  if  it  had  any  opinion  at  all  in  regard  to  such 
problems,  that  Government  by  it  was  out  of  the  question. 
It  had  never  come  into  existence  for  any  such  purpose  and 
could  never  fulfil  any  such  purpose.  The  other  two  Co- 
mitiae  were  controlled  by  the  same  class  that  composed  the 
Senate,  and,  of  course,  this  class  would  act  through  the 
body  where  it  would  find  no  obstacles.  The  Senate  had 
been  strengthened,  too,  after  the  admission  of  Plebeians 
to  the  Magistracies,  by  the  custom  of  all  Ex-Magistrates 
and  their  families  being  regarded  as  ennobled.  This  new 
nobility  composed  of  the  old  Patrician  families  and  this 
host  of  Ex-Magistrate  families  stood  firmly  behind  the 
Senate  and  furnished  the  Senate  with  the  best  political 
and  juristic  talent  which  Rome  afforded.  The  Senate  now 
conducted  the  diplomacy  and  the  relations  with  foreign 
Powers,  made  war  and  peace  and  all  treaties,  made  the 
laws,  managed  the  finances,  and  created  and  controlled  a 
vast  official  service  of  Consuls,  Proconsuls,  Praetors,  Pre- 
fects, and  military  Commanders  throughout  the  immense 
territory  whose  populations  now  acknowledged  the  sway 
of  Rome. 


58  GOVERNMENT  AND  LIBERTY 

So  long  as  the  revel  of  world  conquest  went  on  the  City 
of  Rome  grew  in  population  and  wealth  almost  without 
bounds  or  limits.  The  cheap  food  furnished  by  the  Gov- 
ernment and  spectacles  of  sport,  play,  and  triumphal  pro- 
cessions drew  the  free  farmers  of  the  rural  districts  into 
the  city  and  left  the  lands  which  had  been  their  homes  and 
support  either  to  waste  or  to  be  absorbed  in  latifundia  and 
worked,  if  worked  at  all,  by  freedmen  and  slaves.  The  self- 
respect  and  public  spirit  of  the  Plebeians  were  lost  in  the 
search  for  pleasure  and  in  the  dazzling  circus  of  metro- 
politan life.  For  the  moment  Liberty  had  been  swallowed 
up  by  the  almighty  Government,  which  pillaged  the  world 
and  held  the  minds  of  men  bedrunken  and  besotted  with 
the  delights  of  oriental  luxury  and  vice. 

But  when  this  era  closed  and  the  enemies  of  Rome,  who 
might  be  plundered  at  will,  became  the  subjects  of  Rome, 
who  must  be  allowed  to  live,  the  day  of  reckoning  arrived. 
Men  began  to  think  whether  the  Liberties  of  the  people 
and  the  Government  of  the  vast  state  could  be  permanently 
left  to  this  handful  of  Roman  Nobles,  however  capable 
they  may  have  proven  themselves  in  the  period  of  con- 
quest. The  more  intelligent  Plebeians  and  many  of  the 
fairer-minded  Nobles  became  dismayed  at  the  ruin  of  the 
agricultural  interests  of  Italy  and  the  herding  of  the  coun- 
try folk  in  the  cities,  and  began  the  agitation  for  agrarian 
reforms.  These  propositions  were,  however,  opposed  by 
the  Senate,  and  such  opposition  it  was  that  precipitated 
again  the  constitutional  question. 

Tiberius  Graccus,  elected  Tribune  in  the  year  133  B.  C., 
undertook  to  overcome  the  opposition  of  the  Senate  to 
his  agrarian  reforms  by  reasserting  the  power  of  the 
Comitia  Tributa  to  make  law  without  the  sanction  of  the 
Senate  and  the  power  of  the  Tribunes  to  check  the  arbi- 


THE  EFFORT  OF  EUROPE  59 

trary  rule  of  the  Magistrates.  His  temerity  cost  him  his 
life,  but  the  word  which  he  had  spoken  could  not  be  re- 
called. Ten  years  later  his  brother  Gaius  revived  the  claims 
put  forth  by  him  and  renewed  the  struggle,  and  from  this 
moment  onward  the  popular  party  formed  itself  around 
the  Comitia  Tributa  and  its  Tribunes,  and  announced  its 
determination  of  restoring  this  assembly  and  its  chosen 
leaders  to  their  predominant  place  in  the  Constitution. 
Gaius,  like  his  brother  Tiberius,  fell  by  the  dagger  of  the 
assassin,  but  ten  years  later  the  Plebeians  found  a  still 
more  powerful  leader  in  Gaius  Marius,  a  true  son  of  the 
people,  a  great  soldier,  and  an  able  administrator  of  affairs. 
The  Plebeians  succeeded  in  electing  Marius  to  six  or  seven 
terms  as  Consul,  and  while  they  thus  demoralized  the  sys- 
tem of  elective  office  in  the  Republic,  they  did  not  succeed 
either  with  Marius  or  with  the  great  Tribune,  Marcus 
Livias  Drusus,  in  triumphing  decidedly  over  the  Senate. 

By  the  establishment  of  the  Dictatorship  of  Sulla,  in 
the  year  81  B.  C.,  and  the  suspension  of  all  civil  constitu- 
tional Government  in  behalf  of  a  military  autocracy,  even 
though  this  was  regarded  as  a  temporary  expedient,  the 
Senate,  on  its  side,  dealt  the  Republic  a  blow  which  shat- 
tered its  Constitution  into  fragments. 

The  only  question  now  left  was  whether  the  Dictator 
would  stand  for,  and  as  the  representative  of,  the  Senate 
and  the  municipality  of  Rome  or  for  the  Plebeians  and 
the  vast  Empire  which  had  been  conquered  and  annexed. 
For  nine  or  ten  years,  only,  the  Senate  prolonged  through 
this  means  its  own  ascendancy,  when  another  successful 
soldier,  Pompey,  lent  the  aid  of  the  legions  under  his  com- 
mand to  restore  the  power  of  the  Tribunes  and  the  Comitia 
Tributa.  With  his  troops  and  those  under  the  com- 
mand of  his  wealthy  friend,  Crassus,  encamped  just  out- 


60  GOVERNMENT  AND  LIBERTY 

side  the  city,  he  forced  the  election  of  himself  and  Crassus 
as  Consuls  and  gave  the  direction  for  the  development  of 
the  military  Dictatorship  toward  the  side  of  the  Plebeians. 
The  coalition  of  Pompey  and  Crassus  with  Caesar  in  the 
year  60  B.  C.  brought  at  last  the  personality  to  the  front 
who  was  destined  to  accomplish  this  result  by  his  military 
triumphs  in  the  provinces,  followed  by  the  march  of  his 
victorious  and  devoted  legions  to  Rome  and  the  subjec- 
tion of  the  Senate  to  his  will  by  military  force. 

It  has  been  doubted  by  historians  that  Caesar  had  in 
mind  from  the  beginning  the  complete  transformation  of 
the  Roman  Constitution.  He  could  hardly  have  proceeded 
with  more  precision  and  directness  and  consecutiveness 
had  he  followed  a  plan  long  and  carefully  matured.  His 
elements  of  strength  were  his  legions  and  the  populace  of 
Rome.  He  secured  through  the  populace  in  the  Comitiae 
the  permanent  Dictatorship,  a  form  of  unlimited  govern- 
mental power  already  known  to  the  Constitution  in  the 
Sullan  precedent.  Upon  the  basis  of  this  he  reconstructed 
the  Government  outside  of  the  City  of  Rome  in  Italy  and 
especially  in  the  provinces  through  his  own  agents,  ap- 
pointed by  himself,  amenable  to  himself,  and  subject  to 
dismissal  by  himself.  With  this  he  put  an  end  to  all  pro- 
consular independence  in  the  provinces  and  gave  the  vast 
Empire  a  centralized  Government  of  the  most  effective 
sort.  In  Rome  itself  he  allowed  the  old  constitutional 
bodies  to  remain,  but  he  secured  from  the  Comitiae  his 
election  with  a  permanent  term,  as  both  Consul,  Tribune, 
and  Praetor,  and  took  and  held  the  ground  that  the  Senate 
and  Comitiae  were  only  the  Councils  of  the  Consul  and  had 
no  lawmaking  power.  They  could  only  approve  or  dis- 
approve when  their  counsel  should  be  solicited  by  the 
Consul. 


THE  EFFORT  OF  EUROPE  61 

Such,  in  brief,  was  the  Imperial  system  which  Caesar  con- 
stituted and  established,  and  in  it  there  was  no  place  for 
the  constitutional  Liberty  of  the  Individual  or  of  any  in- 
stitution charged  with  its  defense.  Liberty  had  been  again 
overwhelmed  by  Government  and  the  great  problem  of 
the  reconciliation  of  the  two  seemed  for  the  moment  to 
have  disappeared  again  from  the  consciousness  of  men. 

For  five  years  this  terrible  despotism  continued,  terrible 
more  in  theory,  indeed,  than  in  fact,  for  Caesar  used  his  vast 
powers  considerately,  beneficently,  and  benevolently  on  the 
whole,  when,  on  the  i5th  of  March,  44  B.  C.,  the  partisans 
of  Liberty  sought  to  restore  the  old  order  by  means  of  the 
assassin's  dagger,  and  then  it  became  indisputably  mani- 
fest that  the  life  had  perished  as  completely  from  the  old 
order  as  from  the  corpse  which  lay  bleeding  with  three 
and  twenty  gaping  wounds  at  the  foot  of  Pompey's  statue 
in  the  Senate  Chamber.  Thirteen  terrible  years  of  an- 
archy, with  its  incidents  of  pillage,  bloodshed,  and  misery 
followed,  and  men  became  convinced  that  the  Imperial 
system  inaugurated  by  Caesar  was  the  only  recourse,  that 
in  the  course  of  events  it  had  come  to  stay. 

The  triumph  of  Octavian,  the  grandnephew  and  heir  of 
Caesar,  over  Anthony  in  the  battle  at  Actium  in  September 
of  31  B.  C.,  marks  the  close  of  the  period  of  confusion  and 
the  virtual  restoration  of  the  Caesaristic  regime.  Octavian 
had  had  the  advantage  of  his  granduncle's  experience, 
and  while  his  rule  seemed  to  be  universally  approved  and 
desired,  he  proceeded  with  far  more  discretion  and  pre- 
served with  far  more  care  and  consideration  the  constitu- 
tional forms  of  the  Republic.  He  would  not  allow  himself 
to  be  chosen  Dictator.  He  would  not  even  allow  himself 
to  be  chosen  Consul,  since  this  might  have  emphasized  too 
strongly  the  Patrician  element  in  his  blood.  He  accepted 


62  GOVERNMENT  AND  LIBERTY 

the  office  of  General  Proconsul  in  all  the  provinces  in  which 
military  power  was  necessary  and  of  Tribune  in  the  City 
of  Rome  from  the  first,  i.  e.,  from  the  year  27  B.  C.,  and 
fifteen  years  later  he  accepted  the  office  of  the  Pontifex 
Maximus.  Of  course,  he  received  the  commandership-in- 
chief  of  the  armed  forces,  with  the  power  to  raise,  equip, 
and  dispose  of  the  same  in  the  waging  of  war  or  the  main- 
tenance of  order,  and  was  regarded  as  the  director  of  the 
diplomacy  of  the  state  and  its  relations  to  foreign  Powers. 
The  power  of  the  tribuneship  was  conferred  upon  him  for 
life,  and  the  proconsular  power  for  ten  years  and  renewed 
every  five  or  ten  years  thereafter.  The  title  conferred  upon 
him  by  the  Senate  was  Augustus,  and  he  was  generally 
denominated  "The  Prince,"  Princeps.  He  was  a  member 
of  the  Senate  and  sat  between  the  Consuls. 

Furnished  with  such  pregnant  prerogatives,  Octavian 
gave  the  original  form  to  the  Roman  Imperial  system, 
under  the  protection  of  the  titles  and  the  customary  proce- 
dure of  the  Republic.  Apparently  Octavian  was  only  the 
Chief  Magistrate  of  the  Republic.  The  Senate  and  Co- 
mitiae  were  still  extant  and  could  enact  laws,  but  as  Pontifex 
Maximus  he  could  prevent  their  assembly  or  their  action 
by  declaring  the  moment  inauspicious,  and  as  Tribune  he 
could  declare  their  acts  null  as  contrary  to  the  rights  or 
welfare  of  the  people.  The  Consuls  were  still  there,  but 
his  permanent  and  general  proconsular  powers  cut  them 
off  entirely  from  the  Government  of  the  provinces  which 
were  under  military  regime,  and  that  meant  almost  all  of 
them,  and  his  military  prerogative  of  disposing  of  the  armed 
forces  enabled  him  to  send  them  lawfully  into  the  non- 
military  provinces  and  exercise  a  superior  supervision  over 
the  Governors  appointed  by  the  Senate  and  Comitiae  there. 
His  power  as  Tribune  enabled  him  to  initiate  law  in  either 


[E  EFFORT  OF  EUROPE 

the  Senate  or  the  Comitiae,  and  to  nominate  Magistrates, 
and  if  his  propositions  were  not  adopted,  he  could  with  his 
other  powers  rule  without  them. 

Under  such  conditions  and  in  possession  of  such  limitless 
prerogatives  reaching  in  every  direction  it  was  natural, 
almost  logically  necessary,  that  the  Principate  of  Octavian 
should  develop  into  the  Imperium  of  Diocletian,  i.  e.,  into 
the  system  the  two  fundamental  principles  of  which  were 
the  choice  of  the  Imperator  by  the  soldiery  for  a  life  term 
and  his  absolutely  unlimited  rule  everywhere  and  over 
every  subject.  It  is  only  to  be  wondered  at  that  this  de- 
velopment did  not  proceed  more  rapidly.  Two  hundred 
and  fifty  years  is  a  long  period  in  any  part  of  the  world's 
history,  and  the  perdurance,  in  name  at  least,  of  the  system 
which  Octavian  founded  through  so  long  a  period  is  strong 
evidence  of  the  tenacity  of  the  principles  of  the  Roman 
Republic  and  of  the  political  capacity  of  the  people  who 
created  and  administered  it. 

In  the  system  of  the  Empire  as  finally  adjusted  by  Dio- 
cletian there  was  no  place  whatever  for  the  constitutional 
Liberty  of  the  Individual.  The  tribunicia  potestas  held 
by  Octavian  and  nominally  exercised  by  him  in  defense  of 
the  individual  citizen  against  the  action  of  the  Senate  and 
the  Magistrates  was  now  of  no  consequence,  since  the  Em- 
peror was  both  the  lawgiver  and  Chief  Magistrate,  from 
whom  all  other  Magistrates  derived  office,  power,  and 
emolument.  The  only  hope  of  the  citizen  was  again  in  the 
benevolence  of  Government.  The  great  problem  of  the 
reconciliation  of  Government  and  Liberty  had  again  ap- 
parently fallen  into  abeyance.  The  Government  had  be- 
come sovereign  and  citizens  had  become  only  subjects. 

But,  as  usual,  when  the  darkness  was  apparently  deep- 
est the  dawn  began  its  approach.  In  the  last  half  of  the 


64  GOVERNMENT  AND  LIBERTY 

first  century  it  became  known,  or  rather  rumored,  in  Rome 
that  a  new  kind  of  religious  association  existed  in  the  city. 
No  one  seemed  to  know  exactly  where  it  had  its  habitation 
or  by  what  name  it  was  designated.  It  was  commonly 
supposed  that  it  was  some  sort  of  a  Jewish  sect,  since  it 
was  said  to  have  come  from  the  East.  The  authorities 
took,  at  first,  no  notice  of  it  whatever.  The  principle  of 
the  Roman  Imperial  system  in  regard  to  religion  was  com- 
plete toleration.  The  Roman  Empire  had,  so  to  speak,  a 
state  religion,  but  it  was  polytheism,  that  is,  it  accepted 
for  each  people  brought  under  its  sway  the  existing  religion 
of  that  people,  placed  its  divinities  in  the  Roman  Pantheon, 
made  the  existing  Emperor  its  chief  priest,  and  imposed 
upon  its  votaries  the  worship  of  the  apotheosized  Emperors. 
In  this  way  the  Imperial  Government  not  only  avoided  all 
religious  controversy  with  its  conquered  subjects,  but  actu- 
ally turned  the  religion  of  each  conquered  people,  under  the 
papacy  of  the  Emperor,  into  an  instrument  of  control, 
even  of  oppression,  over  them. 

The  Pagan  religions  found  little  or  no  difficulty  in  accom- 
modating themselves  to  the  conditions  of  their  toleration 
by  the  Imperial  Government,  viz. :  the  papacy  of  the  exist- 
ing Emperor  and  the  worship  of  the  apotheosized  Emperors, 
since  these  religions  were  themselves  polytheistic,  and  were 
already  conducted  by  an  organized  priesthood,  which  exer- 
cised much  of  what  we  now  consider  civil  power,  as  well  as 
spiritual  functions.  Very  soon,  however,  it  began  to  be 
bruited  about  in  the  gossiping  places  of  Rome  that  the 
new  doctrine  and  sect  were  something  quite  different  from 
any  religion  and  any  body  of  votaries  with  which  the 
Roman  Government  had,  as  yet,  come  into  contact.  It 
was  said  that  they  had  no  stated  time  nor  fixed  place  for 
public  worship,  but  that  they  met  secretly  in  unknown 


THE  EFFORT  OF  EUROPE  65 

places;  that  they  had  no  priests;  that  they  would  not 
worship  among  their  Gods  the  apotheosized  Emperors, 
and  that  they  would  not  recognize  the  existing  Emperor  as 
their  chief  priest.  Here  were  plenty  of  points  of  conflict. 
The  secret  meetings  were  in  contravention  of  the  police 
regulations  of  the  city;  the  refusal  or  the  omission  of 
worship  of  the  apotheosized  Emperors  was  a  sort  of  Use- 
majeste;  and  the  rejection  or  non-recognition  of  the  exist- 
ing Emperor  as  chief  priest  was  rebellion.  The  Imperial 
Government  would  be  obliged,  sooner  or  later,  to  take  a 
stand  about  these  things.  It  must  either  punish  their 
perpetrators  until  they  desisted,  or  modify  its  own  con- 
stitutional customs,  or  else  helplessly  suffer  successful 
defiance. 

While  the  Emperors  hesitated  in  the  presence  of  these 
alternatives,  perhaps  I  should  say  while  they  were  becom- 
ing distinctly  conscious  of  them,  the  sect  spread  not  only 
throughout  the  city  and  the  Italian  peninsula,  but  through- 
out many  other  parts  of  the  Empire.  The  fact  was  that, 
entirely  apart  from  what  we  may  call  the  theological  side 
of  the  Christian  doctrine,  the  new  religion  contained  a 
social  and  then  a  quasi-political  side,  which  was  a  necessity 
to  the  subjects  of  the  rapidly  developing  Imperial  despotism, 
in  order  to  regain  the  Individual  Liberty  and  worth  which, 
in  the  transition  from  the  system  of  the  Republic  to  that 
of  the  Empire,  had  been  lost.  The  dignity  of  womanhood, 
the  sanctity  of  marriage  and  the  home,  the  care  of  the 
sick  and  the  poor,  the  equality  and  brotherhood  of  men 
before  the  divine  Judge  and  Father  of  all,  and  the  freedom 
of  belief  and  opinion  must  be  revived  where  they  had  be- 
fore existed,  and  created  where  they  had  not,  in  order  that 
the  decay  of  the  Roman  world,  which  had  already  set  in, 
should  be  arrested  and  civilization  rejuvenated. 


66  GOVERNMENT  AND  LIBERTY 

The  Christian  communities  throughout  the  Empire  seem 
to  have  been  originally  established  on  the  principle  of  local 
independence,  but  with  marvellous  rapidity,  considering 
the  conditions  of  the  age,  they  entered  into  wide  organiza- 
tion upon  the  basis,  originally,  of  a  real  democratic  represen- 
tation. In  the  absence  of  such  means  as  exist  in  modern 
times  for  the  development  of  a  consensus  of  opinion,  this 
organization  was  a  necessity  for  concert  of  thought  and 
action,  but  it  created  a  volume  of  organized  power,  which 
could  not  fail  to  attract  the  attention  of  the  Statesmen- 
Emperors. 

Trajan,  Marcus  Aurelius,  Septimius  Severus,  Decius, 
and  Diocletian,  Rome's  greatest  Emperors,  were  the  real 
persecutors,  or  perhaps  it  would  be  more  correct  to  say 
prosecutors,  in  principle,  of  the  Christian  Church.  Trajan, 
Emperor  from  98  to  117  A.  D.,  evidently  felt  that  law  and 
policy  required  of  him  an  attitude  toward  the  Christian 
societies  which  his  own  personal  disposition  disapproved. 
He  commanded  his  subordinate  officials  not  to  search  for 
the  Christians,  but  when  their  existence  could  not  be 
blinked  at  to  execute  the  law  upon  them.  The  prosecu- 
tions instituted  by  Trajan's  Government  resulted  in  a  free 
advertisement,  more  than  anything  else,  of  the  superior 
moral  life  and  principles  of  the  Christians,  and  for  nearly 
fifty  years  more  they  developed  their  organization  with  but 
little  hindrance  from  the  Government.  Upon  the  acces- 
sion of  Marcus  Aurelius  in  161  A.  D.,  things  had  gone  so 
far  that  the  Government  could  no  longer  ignore  the  power- 
ful institution  which  was  rapidly  gathering  into  itself  the 
best  administrative  talent  as  well  as  the  best  character  of 
the  Empire,  and  was  developing  an  ethical  consensus  which 
threatened  the  foundations  of  the  Imperial  system.  This 
philosophic  ruler  employed  the  whole  power  of  his  Govern- 


THE  EFFORT  OF  EUROPE  67 

ment  to  extirpate  the  institution  root  and  branch.  Through 
his  entire  reign  from  161  to  180  A.  D.,  and  also  through  the 
reign  of  Septimius  Severus,  193  to  211  A.  D.,  the  Imperial 
Government  followed  up  its  prosecutions.  But  all  in  vain. 
Whether  the  Christian  Church  was  protected  by  divine 
power  or  not,  its  moral  system  was  the  demand  of  human 
development.  Its  existence  was  more  and  more  recognized 
as  a  necessity  to  balance  and  limit  the  arbitrary  despotism 
of  the  Imperial  Government.  Forty  years  more  of  com- 
parative rest  followed  the  useless  efforts  of  the  Govern- 
ment of  Septimius  Severus,  when  another  conscientious 
and  zealous  Emperor,  Decius,  mounted  the  throne  and  re- 
vived the  Christian  persecutions,  249  A.  D.  His  were  the 
first  which  extended  all  over  the  Empire  at  the  same  time. 
They  were  followed  up  under  the  form  of  requiring  all  sub- 
jects to  profess  one  of  the  Pagan  religions  recognized  by  the 
Government.  The  movement  was  vigorous  and  even  cruel, 
but  it  was  again  in  vain.  The  most  intelligent  and  sincere 
in  all  classes  of  the  society  throughout  the  whole  Empire 
had  come  to  understand  that  the  Christian  Church  was  the 
institution  with  which  to  combat  the  despotism  and  bar- 
barism of  the  Imperial  system. 

I  do  not  think  that  anything  other  than  this  general 
conviction  can  explain  the  marvellous  organization  of  the 
Church  throughout  the  Empire  from,  and  after,  the  year 
250  A.  D.  It  excelled  that  of  the  Imperial  Government 
itself  in  its  compactness  as  well  as  in  its  volume  of  demo- 
cratic power.  It  was  also  substantially  a  unit  in  its  moral 
code,  which  counted  far  more  than  its  theology  in  its  strug- 
gle against  the  arbitrary  Government  and  in  its  bid  for 
the  affections  of  the  people.  In  the  forty  years  of  com- 
parative repose  between  the  Decian  and  the  Diocletian 
persecutions,  the  Church  historians  remark  the  vast  in- 


68  GOVERNMENT  AND  LIBERTY 

crease  in  numbers  and  influence  of  the  Christian  Church, 
and  at  the  same  time  a  decline  of  earnestness  and  zeal 
among  the  Christians  and  a  certain  more  pronounced 
conformity  on  their  part  to  the  way  of  the  world.  These 
historians  do  not  attempt  to  explain  this.  Perhaps  they 
have  not  understood  its  real  meaning.  The  political  scien- 
tist sees  in  it,  however,  the  rapid  influx  of  the  higher  classes 
of  the  society  into  the  Church,  their  accession  to  the  higher 
offices  of  the  Church  and  the  organization  of  the  Church 
as  a  quasi-civil  power,  as  an  institution  in  which  the  better 
intellect  and  higher  character  of  the  Empire,  excluded  from 
the  offices  of  the  Imperial  Government,  could  render  public 
service  and  contribute  to  the  advancement  of  general  civi- 
lization. It  was  simply  religious  enthusiasm  giving  way 
to  the  efforts  for  moral  advancement  and  for  an  improve- 
ment in  civil  life.  The  political  scientist  cannot  regard 
this  change  as  indicating  any  decline  in  Christian  virtue. 
He  sees  in  it  only  the  principles  of  Christian  morality  com- 
ing to  the  front  and  transforming  the  actual  world  into 
their  likeness. 

The  really  great  Emperor  Diocletian,  the  Emperor  who 
finally  transformed  completely  the  more  moderate  system 
founded  by  Octavian,  the  first  Augustus  Caesar,  into  the 
completely  unlimited  and  despotic  Imperium,  made  one 
last  effort  to  rid  the  Government  of  this  newly  arising  curb 
upon  its  authority,  of  this  new  public  institution  which  was 
disseminating  an  ethical  system  throughout  the  Empire 
which  threatened  on  every  side  the  foundations  of  the 
Imperial  system,  and  which  had  already  become  so  com- 
pactly and  intelligently  organized  and  administered  as  to 
outrival  the  Imperial  official  system  itself.  The  persecu- 
tions which  he  ordained  were  general  throughout  the  Em- 
pire, long-continued,  thoroughgoing,  vigorous,  and  cruel. 


THE  EFFORT  OF  EUROPE  69 

But  they  availed  only  to  strengthen  the  Church  and  weaken 
the  Imperial  Government. 

The  really  exhausted  and  discredited  Government  began 
to  feel  that  it  must  take  steps  to  forestall  revolution.  It 
wisely  decided  to  yield  to  the  inevitable  as  gracefully  as 
possible.  It  issued  the  three  Edicts  of  Toleration  of  the 
years  311,  312,  and  313  A.  D.,  and  the  struggle  was  finally 
ended.  The  edicts  312  and  313  were  issued  by  Constantine 
who,  after  ten  years  of  reflection,  resolved  to  solve  the 
problem  of  the  relation  of  the  Christian  Church  to  the 
Imperial  Government  by  making  it  the  State  Church  of 
the  Empire.  The  Emperor  summoned  the  Bishops  of  the 
Church  throughout  the  Empire  into  conclave  at  Nicea 
and  settled  the  creed  which  was  to  be  the  test  of  member- 
ship in  the  State  Church  and  then  confirmed  this  Church 
in  its  hierarchic  organization  and  conferred  upon  it  cer- 
tain most  important  powers. 

It  does  not  pertain  to  the  subject  I  am  treating  to  ex- 
plain the  Nicene  creed  nor  to  enumerate  all  of  the  rights 
and  privileges  conferred  upon  this  new  State  Church.  Of 
course,  it  became  a  public  corporation  with  the  functions 
naturally  attached  to  such  and  it  displaced  the  Pagan  re- 
ligions and  appropriated  the  temples  and  other  property 
belonging  to  such  religions.  The  two  powers  conferred 
upon  the  Christian  Church  of  the  Nicene  faith  which  have 
interest  for  us  in  following  the  efforts  of  the  world  to  solve 
the  problem  of  Government  in  its  relation  to  Liberty  are 
the  so-called  power  of  intercession,  i.  e.,  the  right  of  any 
Church  official  to  intervene  between  the  Government  and 
the  Individual  and  protect  the  latter  against  the  arbitrari- 
ness of  the  Government,  involving  the  power  to  determine 
whether  the  proposed  acts  of  the  governmental  official  were 
or  were  not  arbitrary;  and  the  right  of  asylum  of  all  Church 


70  GOVERNMENT  AND  LIBERTY 

sanctuaries  against  any  invasion  by  the  Imperial  officials. 
Here  was  virtually  a  revival  of  the  original  powers  of  the 
Tribune  of  the  people.  Here  was  a  limit  upon  the  powers 
of  the  Government  far  more  effective  than  the  Tribunes 
had  ever  been  able  to  exercise.  It  has  been  calculated  that 
the  number  of  Christian  Bishops  in  the  Empire  at  this 
juncture  was  approaching  two  thousand  and  the  number 
of  Christian  sanctuaries  was  much  larger.  With  such 
statistics  in  mind,  it  is  very  easy  to  see  how  the  power  of 
intercession  now  conferred  upon  the  Church  officials  and 
the  right  of  asylum  accorded  the  Christian  sanctuaries 
were  a  most  decided  limitation  in  principle  and  in  fact  upon 
the  powers  of  the  Imperial  Government,  and  in  their  appli- 
cation were  sustained  by  an  institution  which  was  now 
the  most  powerful  organization  in  the  whole  Empire  not 
excepting  the  Imperial  Government  itself.  The  protection 
of  the  Individual  against  the  arbitrariness  of  the  Govern- 
ment had  been  in  fact  exercised  by  the  Church  officials 
before  the  Christian  Church  had  been  made  the  State 
Church,  but  the  possession  of  such  powers  by  them  was  not 
till  then  recognized  by  the  Imperial  Government  and  they 
were  exercised  by  them  only  in  behalf  of  Christians.  Now, 
however,  after  establishment,  all  subjects  of  the  Emperor 
might  be  regarded  as  Christians  and  the  rights  of  inter- 
cession and  asylum  were,  we  might  say,  constitutional 
prerogatives  of  the  Church,  to  be  exercised  by  each  Church 
official  upon  his  own  motion.  With  such  checks  as  these 
upon  governmental  power,  the  rapidly  advancing  despotism 
of  the  Diocletian  Imperial  system  was  turned  back  and  a 
domain  of  Individual  Liberty  was  vindicated  and  pro- 
tected. It  is  true  that  it  was  still  unclear  what  the  domain 
comprised  in  principle,  since  it  was  left  to  the  Church  or 
rather  to  the  individual  officials  of  the  Church  to  determine 


THE  EFFORT  OF  EUROPE  71 

when  and  to  what  extent  this  protection  should  be  ac- 
corded in  each  case.  Moreover,  there  was  also  the  danger 
that  the  established  Church  might  feel  itself  to  be  a  part 
of  the  Government  and  might  through  its  hierarchy  of 
officials  sustain  the  Government  against  the  people,  and  be 
tempted  to  exercise  force,  instead  of  influence  and  suasion 
over  the  people,  i.  e.,  to  act  itself  rather  as  Government 
than  as  religious  organization,  and  there  was  also  the  fact 
that  an  established  Church  is  by  virtue  of  its  establishment 
a  denial  of  Individual  Independence  in  regard  to  religion. 
These  dangers  were  all  realized  later,  but  during  the  first 
centuries  after  the  establishment  they  remained  in  abey- 
ance, and  the  Church,  through  its  compact  organization, 
arrived  at  a  consensus  of  opinion  concerning  the  content 
of  the  sphere  of  Individual  Immunity  against  governmental 
arbitrariness  and  defended  the  same  mightily  and  with 
general  success. 

In  addition  to  all  this,  we  must  take  account  of  the  facts 
that  the  Church  was  now  able  to  bring  such  pressure  upon 
what  we  may  call  Imperial  legislation  as  to  give  it  a  Chris- 
tian instead  of  a  Pagan  quality  and  to  hold  the  Emperor 
under  its  control  by  forcing  upon  him  the  conviction  that 
it  could  give  the  moral  support  which  would  make  his 
throne  stable,  and  inspire  the  loyalty  which  would  sustain 
his  rule.  All  these  influences  soon  manifested  themselves 
in  the  new  attitude  of  the  Emperors  toward  their  subjects 
and  in  the  transformation  of  the  laws  in  the  codes  of  Theo- 
dosius  and  Justinian.  And  so  it  is  not  too  much  to  say, 
in  fact  we  must  in  all  truth  say,  that  the  Christian  Church, 
especially  under  its  Western  hierarchic  organization,  i.  e.y 
under  the  Patriarchate  of  Rome,  rescued  the  individual 
subjects  of  the  Empire  from  the  arbitrary  despotism  of  the 
Caesars,  rescued  the  Empire  from  the  decay  of  its  own 


72  GOVERNMENT  AND  LIBERTY 

suicidal  course,  and  rescued  Europe  from  the  fate  of  Asia. 
The  Constantinian  reforms  preserved  the  Empire  for  cen- 
turies to  come  and  the  Christian  Church,  under  the  hier- 
archic organization  of  the  Patriarchate  of  Rome,  constituted 
a  power,  both  religious  and  civil,  upon  which  the  barbaric 
onslaughts  of  the  Middle  Ages  would  break  in  vain. 


CHAPTER  III 

GERMANIA 

IT  is  usually  claimed  by  political  scientists  and  historians 
that  the  student  of  Liberty  must  seek  its  origin  in  the  for- 
ests of  Germania.  Their  chief  authority  for  this  assertion 
is  the  Roman  historian,  publicist  and  statesman,  Publius 
Cornelius  Tacitus,  who  was  born  somewhere  about  the 
year  54  A.  D.,  and  died  about  118  A.  D.  In  his  work  en- 
titled the  Germania,  or  De  Situ  ac  Populis  Germanics,  he 
describes  and  eulogizes  the  political  institutions  of  the  peo- 
ple of  Germania  and  represents  them  as  models  of  civil 
and  political  freedom.  It  must  be  remembered  that  Tac- 
itus lived  and  wrote  in  the  period  of  the  reign  of  such 
Roman  Emperors  as  Nero,  Domitian,  and  Trajan,  that  is, 
at  a  time  when  every  vestige  of  real  Liberty  had  departed 
from  the  Roman  institutions,  and  that,  consequently,  the 
contrast  furnished  by  the  primitive  natural  German  insti- 
tutions was  very  striking,  so  striking  as,  perhaps,  to  have 
affected  his  critical  judgment  somewhat  as  a  scientific  pub- 
licist. Every  classical  scholar  knows  that  Tacitus  is  rather 
hard  reading  and  that  his  terse  sentences  are  capable  of 
somewhat  differing  interpretations.  To  me  the  most  satis- 
factory interpreter  of  the  great  Roman  author,  from  the 
point  of  view  of  political  science,  is  the  late  celebrated 
German  political  historian,  Georg  Waitz,  whose  monu- 
mental work,  Deutsche  Verfassungsgeschichte,  is  the  high- 
est authority  on  the  subject  known  to  the  learned  world. 
It  was  with  him  that  I  read  the  Germania  of  Tacitus  in 

73 


74  GOVERNMENT  AND  LIBERTY 

my  student  days  and  in  the  interpretation  which  I  shall 
offer  of  the  statements  of  Tacitus  I  shall  always  consult 
his  renderings  of  the  original  text. 

According  to  the  representation  of  Tacitus,  the  Germans 
of  the  year  100  A.  D.,  we  will  say,  were  an  agricultural  and 
pastoral  people,  living  in  small  villages,  cultivating  a  certain 
portion  of  the  land,  using  another  portion  as  pasture,  the  re- 
mainder being  forest  or  swamp  or  desert.  The  arable  land 
had  become  private  property,  but  could  be  worked  only  in 
conformity  to  an  ordinance  of  the  community  requiring  a 
certain  rotation  of  crops  and  fallow-lying.  The  pasture  and 
the  forest  were,  however,  property  of  the  community  in  which 
each  owner  of  arable  land  had  a  right  of  use.  The  owner- 
ship of  a  bit  of  arable  land  in  a  community  together  with 
the  right  of  use  in  the  common  pasture  and  forest  was  the 
basis  of  political  citizenship.  The  society — if  we  may  give 
so  scientific  a  name  to  the  population  in  that  rude  age — 
was  distinguished  by  Tacitus  into  four  classes,  viz. :  Nobles, 
common  freeman,  dependants,  and  slaves.  There  were 
not  many  Nobles,  and  the  dependants  and  slaves  did  not 
constitute  the  majority  of  all  persons.  The  stock  and  stuff 
of  the  state  were  the  common  freemen.  They  were  those 
members  of  the  community  who  were  arms-bearing  and  who 
held  land  by  free  tenure,  i.  e.,  not  from  any  other  person. 
The  Nobles  were  higher  than  freemen  only  in  the  respect 
that  they  held  generally  larger  estates.  Their  nobility 
was  little,  if  any,  more  than  notability,  a  higher  respecta- 
bility. They  probably  originated  by  the  union  of  adjacent 
smaller  communities  into  the  larger  tribal  communities, 
which  existed  in  the  time  of  Tacitus.  The  officials  of  these 
smaller  communities,  in  giving  way  to  the  officials  of  the 
larger  unions,  preserved  for  themselves  and  their  descen- 
dants the  respectability  of  mediatized  rulers,  and  while  the 


THE  EFFORT  OF  EUROPE  75 

primitive  German  politics  did  not  admit  of  the  hereditary 
descent  of  office,  it  did  not  prohibit  such  devolution  of 
honor  and  high  social  standing.  As  the  richer  class  they 
had  naturally  more  dependants  and  slaves,  but  the  com- 
mon freemen  also  frequently  had  dependants  and  slaves — 
oftener,  one  would  fancy,  slaves  than  dependants.  De- 
pendants were  what  we  would  call  leaseholders,  persons  who 
worked  land  on  their  own  account,  which  land  belonged, 
however,  to  some  other  person.  The  common  freeman,  as 
a  rule,  did  not  have  enough  land  to  let  any  of  it.  He,  with 
the  members  of  his  family  and  sometimes  with  a  slave  or 
two,  could  cultivate  all  the  land  he  possessed.  There  must 
have  been  a  considerable  number  of  these  leaseholders. 
When  one  entire  community  was  overcome  in  battle  by 
another,  the  members  of  this  subjected  community  usually 
fell  into  this  dependent  relation  to  the  members  of  the 
conquering  community.  When,  on  the  other  hand,  cap- 
tives were  taken,  singly  or  in  small  numbers,  they  were 
generally  made  slaves  and  became  dependants  then  only 
by  emancipation.  The  difference  between  the  dependant 
and  slave  seems  to  have  consisted  chiefly  in  the  facts  that 
the  slave  could  be  bought  and  sold  as  a  chattel  and  had 
no  standing  in  court,  while  the  dependant  could  at  the 
most  be  transferred  from  one  landlord  to  another  with  the 
land  which  he  leased,  or,  at  least,  tilled,  and  had  a  standing 
in  court.  Neither  was  a  citizen,  neither  had  any  political 
rights,  and,  generally,  neither  could  bear  arms,  except  in 
periods  of  migration  and  of  desperate  defense,  when  the 
dependants  were,  in  lesser  or  greater  numbers,  admitted 
or  drawn  into  the  armed  force.  Later  on,  when  the  Ducal 
and  Royal  power  and  authority  were  developed,  the  Dukes 
and  Elings  frequently  took  members  of  the  dependent  class 
into  their  service,  both  military  and  civil,  which  resulted 


76  GOVERNMENT  AND  LIBERTY 

in  giving  such  persons  a  higher  social  standing  and  in  ele- 
vating the  class  to  which  they  belonged. 

Upon  the  basis  of  such  social  relations  were  founded  the 
political  and  governmental  institutions.  First  and  most 
fundamental,  and  the  source  of  all  other  authority,  was  the 
tribal  Assembly  composed  of  all  the  freemen  and  Nobles, 
i.  e.,  the  arms-bearing  landowners,  acting  under  the  presi- 
dency of  a  chosen  Prince,  or  moderator.  The  tribe  was  the 
state,  the  sovereign  power,  as  we  now  say,  and  the  tribal 
Assembly  was  the  organization  through  which  the  sover- 
eignty was  exercised.  There  was,  consequently,  no  limi- 
tation upon  its  powers.  Had  it  acted  only  as  a  constitu- 
tional convention,  so  to  speak,  constructing  the  organs  of 
Government,  vesting  powers  in  them  and  limiting  their 
extent,  here  would  have  been  something  manifesting  a 
high  stage  of  political  thought.  The  tribal  Assembly  was, 
however,  ordinary  Legislature  and,  in  many  respects,  high- 
est administrative  organ.  For  example,  it  declared  war, 
made  peace,  concluded  treaties,  and  in  many  cases  acted 
as  the  supreme  judicial  body.  It  was  thus  a  part  and  the 
most  important  part  of  the  ordinary  Government,  and,  as 
Government,  its  powers  were  entirely  unlimited,  i.  e.}  it  was 
only  self-limited.  In  lowest  instance  stood  the  Assembly 
of  the  village,  composed  of  all  the  freeholders  of  the  village, 
acting  under  the  presidency  of  a  chosen  officer  or  moderator. 
Its  functions  were  mostly  of  the  nature  of  police  Govern- 
ment and  economic  administration,  chiefly  in  regard  to 
the  system  of  land  divisions  and  agriculture.  Both  the 
tribe  and  the  village  were,  so  to  speak,  natural  organiza- 
tions and  were  the  product  of  historic  growth.  Between 
the  two  was  the  more  artificial  division,  entitled  the  hun- 
dred, with  its  Assembly  composed  of  all  the  arms-bearing 
landowners  of  the  division  under  the  presidency  of  a 


THE  EFFORT  OF  EUROPE  77 

Prince  chosen  in  and  by  the  Assembly  of  the  tribe,  one  for 
each  of  the  hundreds  which  composed  the  tribe  or  rather 
into  which  the  tribe  was  divided.  This  Assembly  was 
more  a  judicial  body  than  anything  else  and  was,  therefore, 
more  constantly  in  session.  Its  President,  the  Prince,  or 
Princeps,  as  Tacitus  called  him,  was  the  one  permanent 
executive  officer  of  the  primitive  Germanic  Constitution. 
As  I  have  said,  he  was  elected  in  and  by  the  tribal  Assem- 
bly, and  he  held  for  life  usually.  He  was  authorized  to 
keep  a  body  of  retainers,  not  only  for  the  protection  of  his 
person  and  the  maintenance  of  the  dignity  of  his  office, 
but,  also,  for  executing  the  decisions  of  the  hundred  Assem- 
bly. His  office  was  permanent  and  continuous  while  that 
of  the  President  of  the  tribal  Assembly  lasted  only  during 
the  sessions  of  the  Assembly.  In  the  sessions  of  the  tribal 
Assembly  these  Princes  of  the  hundreds  acted  as  a  sort  of 
general  committee  for  the  preparation  of  the  business 
which  was  presented  to  the  Assembly,  and  it  was  they 
who  usually  executed,  each  in  his  own  hundred,  the  reso- 
lutions of  this  Assembly  as  well  as  those  of  the  hundred 
Assembly,  since  they  alone  in  the  absence  of  a  Prince  of 
the  tribe,  which  was  the  usual  situation,  possessed  the  or- 
ganization for  the  enforcement  of  the  law,  viz.:  the  band 
of  retainers.  These  bodies  were  recruited  by  them  out  of 
every  class  of  the  society  except  the  slaves.  Generally, 
however,  it  was  the  young  scions  of  the  nobility  which 
composed  them.  The  common  freemen  and  their  sons 
and  the  leaseholders  were  generally  occupied  in  tilling  the 
soil.  The  estates  of  the  Nobles,  on  the  other  hand,  were 
usually  tilled  by  slaves  or  leased  to  dependants,  and  their 
sons  were  free  to  follow  war  or  the  chase,  or  take  up  service 
with  the  Princes.  When  the  Prince  had  need  of  force  to 
execute  the  law,  they  were  there  to  do  his  bidding.  When 


78  GOVERNMENT  AND  LIBERTY 

he  chose  to  go  on  adventure,  they  were  his  followers.  And 
when  the  entire  tribe  engaged  in  war  or  migration,  they 
formed,  so  to  speak,  the  staff  of  the  several  Princes,  as 
military  Commanders.  When  not  engaged  in  any  of  these 
pursuits  they,  as  the  table  companions  of  the  Prince,  were 
eating  and  drinking  and  carousing  with  him. 

Such  were  the  usual  political  and  governmental  institu- 
tions of  the  primitive  German  state.  Tacitus  does  men- 
tion, however,  tribes  which  had  a  Prince  of  the  tribe  as 
well  as  Princes  of  the  hundred  divisions  within  the  tribe. 
He  also  mentions  unions  of  tribes  which  had  Kings,  such 
as  the  Goths,  the  Marcomanni,  the  Quadi,  and  the  Herman- 
duri.  From  what  he  says  it  is  evident  that  where  the 
tribe  had  a  Prince,  that  is,  a  single  Chief,  elected  by  the 
tribal  Assembly  and  holding  for  life,  such  tribe  was  an  older 
development  than  that  attained  by  most  of  the  tribes, 
that  is,  it  was  a  tribe  in  which  the  local  spirit  had  been  in 
higher  degree  overcome.  In  other  words,  such  a  tribe  was 
passing  over  from  the  confederate  to  the  federal  stage  in 
its  development.  Such  a  Prince  was  not  distinguishable, 
however,  from  the  Princes  of  the  hundreds  within  his 
tribe,  either  in  tenure  or  term  of  office.  The  subjects  of 
his  administration  were  different  from  those  coming  under 
their  administration,  but  his  authority,  as  theirs,  was 
derived  from  the  tribal  Assembly,  which  elected  both  him 
and  them;  and  the  means  of  executing  the  law  were  the 
same  in  both  cases,  viz.:  the  body  of  retainers.  This  or- 
ganization around  the  Prince  of  the  tribe  may  have  been 
larger  and  possessed  of  more  dignity  in  the  eyes  of  the 
people,  but  it  was  composed  in  the  same  way  and  of  prac- 
tically the  same  material,  and  its  methods  and  activities 
were  the  same  as  that  around  the  Prince  of  the  hundred. 

On  the  other  hand,  in  those  tribes  or  rather  unions  of 


THE  EFFORT  OF  EUROPE  79 

tribes  which  had  Kings  a  new  conception  of  power  was 
introduced,  viz.:  an  element  of  independent  authority  be- 
longing to  a  particular  family,  the  active  member  of  which 
was  still  designated  in  the  most  general  Assembly  of  the 
tribe  or  union  of  tribes.  In  other  words,  the  principle  of 
hereditary  right  to  the  Chieftaincy  seems  to  have  mani- 
fested itself  among  certain  of  the  tribes  or  unions.  This 
must  have  been  a  development  brought  about  by  a  long 
period  of  war  or  migration  or  both,  and  the  Kingly  office 
and  power  must  have  gradually  developed  out  of  the  mili- 
tary Chieftaincy,  as  I  shall  describe  later  in  the  case  of  the 
Salian  Franks.  It  is  hardly  conceivable  that  any  tribal 
Assembly  of  the  primitive  German  state  would  have,  con- 
sciously, intentionally,  and  at  a  given  moment,  elected  a 
Chief  to  hold  office  by  hereditary  right. 

From  a  critical  survey  of  these  details  we  are  forced  to 
conclude  that  what  we  are  dealing  with  in  the  primitive 
Germanic  politics  is  a  broadly  aristocratic  Republic  with 
an  unHmited  legislative  Government.  The  heads  of  fam- 
ilies owning  land  and  bearing  arms,  organized  in  their  As- 
semblies of  the  village,  the  hundred  and  the  tribe  are,  with 
their  chosen  agents,  the  Government  in  each  case.  Assum- 
ing that  the  dependants  and  slaves  numbered  about  one- 
half  of  the  population  and  that  each  family  was  composed, 
on  the  average,  of  five  members,  the  number  of  those  par- 
ticipating in  political  power  would  have  been  not  over 
one-tenth  of  the  entire  population.  Granting  that  each 
head  of  a  family  represented,  on  natural  principle,  the 
members  of  his  family  and  acted  for  their  best  interests, 
there  would  still  have  remained  at  least  half  of  the  popu- 
lation entirely  outside  the  bounds  of  any  kind  of  represen- 
tation. 

This  is  a  vital  point  in  the  sort  of  governmental  system 


8o  GOVERNMENT  AND  LIBERTY 

which  we  are  now  examining.  The  primitive  German 
state  secured  Individual  Liberty  only  by  participation  of 
the  Individual  in  governmental  power.  This  is  one  way 
indeed  to  secure  such  Liberty,  but  it  is  a  crude  way  and 
an  ineffectual  way.  It  is  crude  because  it  does  not  separate, 
by  fundamental  constitutional  principle,  the  realm  of  In- 
dividual Liberty  from  that  of  governmental  policy,  nor 
does  it  provide  any  impartial  non-political  means  for  safe- 
guarding such  a  domain.  And  it  is  ineffectual,  because  by 
the  manner  of  its  action  it  protects  only  the  majority  of 
those  participating  in  the  exercise  of  governmental  power. 
The  Individual  Liberty  of  those  composing  the  minority 
of  the  participants  in  Government,  as  well  as  of  all  those 
who  are  not  so  participant  at  all,  will  not  be  conserved  by 
any  such  means  and  methods.  Now,  the  real  test  of  the 
real  existence  of  Individual  Liberty  in  any  political  and 
governmental  system  is  whether  that  system  presents  a 
fairly  well-defined  realm  of  Individual  Liberty,  of  individual 
exemption  from  governmental  power,  and  provides  the 
means  for  the  protection  of  that  realm,  as  well  against  en- 
croachment by  the  Government  as  against  encroachment 
from  every  other  quarter.  The  primitive  German  system 
made  no  such  provisions.  It  simply  trusted  everything 
to  the  benevolent  disposition  of  the  majority,  in  each  case, 
of  the  participants  in  the  exercise  of  governmental  power. 
The  fact  that  these  participants  in  governmental  power 
were  the  landowning,  arms-bearing  adult  males  did  not 
render  unlimited  Government  by  a  majority  of  these  one 
whit  less  despotic  in  principle  than  when  exercised  by  the 
Roman  Emperor. 

I  do  not  see,  therefore,  that  the  primitive  German  politi- 
cal and  governmental  system  at  all  solved  the  great  prob- 
lem of  the  reconciliation  of  Government  with  Liberty.  I 


THE  EFFORT  OF  EUROPE 


81 


do  not  even  see  that  the  primitive  German  system  made 
any  provisions  worth  the  mention  for  distinguishing  Indi- 
vidual Civil  Liberty  from  participation  in  political  power 
or  for  securing  the  same  against  encroachment  by  the  ordi- 
nary political  authorities.  It  seems  to  me  that  we  have 
here  again  a  political  and  governmental  system  which,  in 
principle,  sacrifices  Individual  Civil  Liberty  to  Govern- 
ment, no  matter  how  lightly,  considerately  and  benevo- 
lently Government  might  exercise  its  powers.  I  think  we 
shall  have  to  travel  much  further  down  the  ages  to  find 
the  kind  of  Liberty  for  which  we  are  looking  and  to  find 
the  means  for  conserving  it  against  governmental  en- 
croachment without  producing  anarchic  or  demoralizing  or 
disorganizing  results. 


CHAPTER  IV 

THE  FRANKISH   KINGDOM 

As  I  have  already  indicated,  it  was  the  custom  of  the 
German  tribes  in  periods  of  war  and  migration  to  suspend 
their  Government  by  the  Assemblies  and  its  elected  agents 
and  to  select  a  military  Chieftain  for  the  time  of  such 
movements  and  vest  in  him  unlimited  power.  At  first  their 
terms  were  of  shorter  duration  and  the  suspension  of  the 
ordinary  Constitution  did  not  last  so  long  as  to  allow  the 
powers  of  the  military  Chief  to  become  permanent  or  quasi- 
permanent  through  age.  At  the  end  of  the  military  enter- 
prise, the  Chief,  the  Leader,  Dux,  Herzog,  Duke,  must 
relinquish  his  power  and  office  on  pain  of  grievous  punish- 
ment should  he  fail  to  do  so.  Arminius,  Duke  of  the  Hes- 
sians, lost  his  life  at  the  hands  of  his  own  followers  for  at- 
tempting to  hold  on  to  his  office  and  powers  after  the  close 
of  a  successful  campaign.  But  when  the  migrations  of 
the  tribes  and  confederations  of  tribes  into  the  territory  of 
the  Roman  Empire  lasted  through  decades  and  centuries 
and  when  the  cessation  of  the  migratory  movements  was 
gradual  and  extended  through  long  and  indefinite  periods, 
the  conditions  for  a  return  to  the  customary  Government 
by  the  Assemblies  were  not  again  so  definitely  and  de- 
cidedly reattained  as  to  bring  about  the  prompt  abdication 
of  the  military  Chieftain,  the  Duke.  In  other  words,  the 
long  period  of  the  migrations,  from  the  second  to  the  sixth 
century,  favored  the  permanency  of  the  unlimited  Govern- 
ment of  the  Duke  and  the  transmission  of  the  office  to  his 

82 


THE  EFFORT  OF  EUROPE  83 

own  descendants  or  at  least  family  relations,  since  they 
would  be  instructed  by  him  in  the  discipline  and  experi- 
ences of  the  command  and  would  inherit  from  him  his 
arms  and  material  of  a  military  nature.  In  still  other 
words,  the  continued  condition  of  migration,  war,  or  hostil- 
ities favored  the  development  of  the  Ducal  office  and  power 
into  the  Kingly,  the  system  of  the  hereditary  Chieftaincy 
in  peace  as  well  as  war. 

Already  in  the  early  part  of  the  fifth  century  the  tribes 
occupying  the  territory  along  the  east  bank  of  the  lower 
Rhine  and  reaching,  at  points,  over  to  the  west  bank,  the 
Salian  Franks,  had  formed  a  confederation  under  the  mili- 
tary Chieftaincy  of  one  Clojo,  and  as  Clojo's  son  Merovius 
followed  him  in  the  command,  and  Merovius's  son  Childeric 
followed  him,  and  Childeric's  son  Clovis  followed  him,  we 
may  say  that  by  486  A.  D.  the  Royal  system  of  Govern- 
ment was  several  stages  advanced  in  its  development  and 
was  rapidly  displacing  the  primitive  Government  by  the 
Assemblies  of  the  freeholders.  Still  there  was  always  the 
danger  to  the  house  of  Merovius  that,  when  a  condition 
of  permanent  settlement  should  be  finally  attained,  the 
demand,  and  then  the  movement,  would  be  made  for  the 
restoration  of  the  ancient  Republican  Constitution.  No 
one  recognized  this  danger  more  clearly  than  the  astute 
Clovis,  who,  in  481,  when  only  fifteen  years  of  age,  was,  by 
the  death  of  his  father  Childeric,  compelled  to  face  the 
problem  of  making  good  his  right  of  succession  to  the 
office  and  power  which  his  father  had  held.  Consciously 
or  unconsciously,  Clovis  struck  out  at  once  in  a  direction, 
I  will  not  call  it  policy,  which  was  best  calculated  not  only 
to  secure  his  own  inheritance  of  his  father's  position,  but 
to  establish  so  firmly  the  right  of  his  house  to  the  govern- 
mental supremacy  over  his  subjects,  that  it  was  not  again 


84  GOVERNMENT  AND  LIBERTY 

questioned,  until  the  decay  of  the  Merwing  family  itself 
caused  its  own  displacement. 

Upon  his  accession,  in  481,  his  Franks  had  advanced 
toward  the  Southwest  as  far  as  the  river  Somme.  They 
had  not  to  this  time  disputed  the  governmental  supremacy 
of  the  Romans  over  this  territory.  They  had  occupied  it 
under  the  consent  of  the  Roman  authorities  and  had 
recognized  their  sovereignty.  At  that  moment  the  Roman 
Governor  over  the  region  was  one  Syagrius,  and  his  official 
seat  was  Soissons.  Exactly  to  whom  Syagrius  was,  as 
Governor  in  Gaul,  directly  responsible  was  not  very  clear. 
Five  years  before  this  Odoacer,  the  Gothic  Chieftain,  had 
driven  the  Co-Emperor  out  of  Ravenna  and  had  seized 
the  reins  of  Government  in  Italy  himself.  The  leading 
men  in  Italy  had  acquiesced  in  the  usurpation  and  had 
besought  the  Roman  Emperor  at  Constantinople,  Zeno,  to 
do  away  with  the  system  of  two  Emperors,  one  at  Constan- 
tinople and  one  in  Italy,  assume  the  entire  Imperial  sover- 
eignty himself  and  appoint  Odoacer  his  general  Lieutenant 
in  the  West.  The  Emperor  Zeno  entertained  and  accepted 
their  proposition  and  the  reign  of  Odoacer  was  made  thus 
legitimate  in  Italy  and  perhaps  over  all  of  the  Western 
provinces  of  the  Roman  Empire.  Neither  Syagrius,  how- 
ever, nor  the  other  Roman  Governors  in  the  West,  relished 
the  idea  of  subordination  to  the  Emperor's  barbarian  rep- 
resentative in  Italy.  He,  especially,  set  about  realizing  a 
plan  for  erecting  Gaul,  or  a  large  part  thereof,  into  an  in- 
dependent Kingdom  for  himself.  This  movement  on  the 
part  of  Syagrius  furnished  Clovis  his  supreme  opportunity 
and,  though  only  a  youth  of  twenty-one,  he  seized  upon  it 
with  an  insight,  a  promptness,  and  a  vigor,  which  are  usually 
to  be  found  only  in  mature  and  experienced  men  of  greater 
age.  Proclaiming  his  loyalty  to  the  Emperor  at  Constan- 


THE  EFFORT  OF  EUROPE  85 

tinople  he,  at  the  head  of  his  four  thousand  trained  warriors, 
threw  himself  upon  the  rebel  Syagrius,  vanquished  him, 
and  put  him  to  death. 

Being  now  himself  the  only  Government  left  north  of 
the  Loire,  he  promptly  set  to  work  organizing  his  authority 
over  all  of  Northern  Gaul.  His  next  step  was  equally  states- 
manlike. He  saw  that  the  Gallo-Romans  were  controlled 
chiefly  by  their  Bishops  and  that  the  friendship  and  co- 
operation of  the  Bishops  of  the  orthodox  Church  were  in- 
dispensable to  the  full  realization  of  his  plans.  He  imme- 
diately began  cultivating  their  friendship,  seeking  their 
advice,  deferring  to  their  wishes,  confirming  their  jurisdic- 
tion as  conferred  by  the  Roman  Imperial  Constitution,  and 
increasing  their  possessions  from  the  domains  of  the  Roman 
Imperium,  which  he  had  promptly  seized  as  the  represen- 
tative of  the  Emperor  in  Gaul,  and  finally  in  496  acknowl- 
edging conversion  with  his  whole  people  to  orthodox  Chris- 
tianity. 

The  dramatic  description  of  this  conversion  given  by 
the  early  historians  is  not  germane  to  our  subject  and 
need  not  be  repeated  here.  We  will  only  refer  to  the  politi- 
cal advantages  gained  by  it.  In  a  word,  it  simply  made 
the  King  of  the  Franks  the  defender  of  the  orthodox  Chris- 
tian faith  not  only  against  individual  dissenters,  but  against 
the  other  German  rulers  and  tribes  who  had  seized  upon 
other  parts  of  Gaul,  viz. :  the  Visigoths  in  Aquitania  south 
of  the  Loire  and  the  Burgundians  in  the  southeast,  and  it 
secured  the  vast  influence  of  the  Bishops  throughout  all 
Gaul  over  the  Gallo-Romans  in  behalf  of  the  legitimacy  of 
the  Frankish  King  and  the  extension  of  his  reign  over  all 
Gaul.  This  all  came  quickly  to  pass  and  at  the  same 
time  the  Roman  Emperor,  Anastasius,  influenced  by  the 
loyalty,  real  or  pretended,  of  Clovis  in  dealing  with  the 


86  GOVERNMENT  AND  LIBERTY 

treason  of  Syagrius,  and  by  the  attitude  of  the  Gallic 
Bishops,  made  him  Patrician  and  Roman  Governor  or 
Proconsul  in  Gaul.  With  this  act  of  the  Emperor  and 
the  attitude  of  the  Bishops  the  loyalty  of  the  Gallo-Romans 
to  King  Clovis  was  secured,  and  their  obedience  to  his 
Government  as  legitimate  was  established. 

Moreover,  the  authority  of  Clovis  as  Roman  Proconsul 
in  Gaul  and  Defender  of  the  orthodox  Church  had  a  power- 
ful reflex  influence  upon  his  relation  to  his  Prankish  follow- 
ers. In  a  word,  it  made  it  impossible  for  them  to  demand 
his  abdication  in  favor  of  the  re-establishment  of  the 
primitive  German  Constitution  of  Government  by  the  As- 
semblies of  the  freeholders.  His  Kingship,  i.  e.}  his  heredi- 
tary Government  over  the  Franks,  was  now  established 
beyond  all  peradventure.  Here  was  now  the  state  which 
was  to  take  the  place  of  the  Roman  Empire  in  guiding  and 
directing  the  civilization  of  Europe  for  centuries  to  come.  ! 

Let  us  examine,  now,  whether  in  its  Constitution  and 
organization  it  contained  any  provision  for  the  solution  of 
our  problem  of  the  reconciliation  of  Government  with 
Liberty.  Naturally,  there  was  no  such  thing  as  a  written 
Constitution  for  a  state  having  such  an  origin  as  the  Mero- 
vingian Kingdom  of  the  Franks.  There  was,  indeed,  a 
law  book  of  the  Salian  Franks,  dating  back  to  a  period  be- 
fore the  rise  of  the  Merwing  Chieftains,  but  it  contained 
little  or  nothing  in  the  way  of  public  law,  and  as  to  the 
question  of  Individual  Liberty  it  certainly  went  no  further 
than  to  fix  the  common  custom  in  the  dealings  of  men,  in 
other  words,  due  process  of  law  between  man  and  man. 
It  contained  one  provision  which  furnished  an  example  for 
the  law  of  descent  of  the  Crown.  It  was  that  no  woman 
could  hold  land;  in  other  words,  that  land  was  heritable 
only  in  the  male  line. 


THE  EFFORT  OF  EUROPE  87 

The  military  origin  and  the  military  character  of  the 
Kingdom  of  the  Franks  made,  however,  this  new  state,  in 
principle,  a  military  despotism,  in  which  the  will  of  the 
King  was  law,  law  administered  by  his  own  appointed 
agents,  responsible  to  him  and  dismissible  by  him  at  his 
pleasure.  But  there  were  many  things  which  stood  in  the 
way  of  the  full  realization  of  such  a  principle.  The  main 
thing,  the  one  thing  above  all  others,  was  the  Christian 
Church,  well  organized  under  its  Bishops,  and  possessing, 
according  to  the  Roman  public  law,  the  power  of  interces- 
sion with  the  Government  in  behalf  of  the  individual  and 
of  the  people,  and  the  power  of  controlling  and  administering 
education  and  charity,  and  the  law  of  domestic  relations. 
The  authority  of  the  Frankish  King  over  his  Gallo- 
Roman  subjects  depended  almost  entirely  upon  the  influ- 
ence of  the  Bishops  and  lower  Clergy  over  the  people.  He 
must,  therefore,  in  his  Government  not  only  leave  them  in 
possession  of  the  powers  recognized  to  them  by  the  public 
law  of  the  Roman  Empire,  but  he  must  increase  those 
powers  from  time  to  time,  in  order  to  maintain  their  friend- 
ship and  co-operation.  Then,  the  development  of  the 
agrarian  relations  raised  up  an  aristocratic  class  which  was 
little  inclined  to  endure  any  unlimited  powers  in  the  Crown. 
The  vast  public  domain  in  Gaul  was,  of  course,  seized  by 
Clovis  as  the  successor  to  the  Imperial  agents.  Upon  this 
domain  his  crude  fiscal  system  was  based.  He  divided  the 
most  of  it  among  his  followers  in  arms  as  compensation 
for  future  as  well  as  for  past  service.  He  created  thus  a 
class  of  Manorial  Lords,  holding  vast  landed  estates  which 
they  worked  either  with  slaves  or  let  out  to  tenants  on  con- 
dition of  service  or  payment  of  some  kind  of  tribute.  These 
Lords  assumed  the  powers  of  local  Government  over  the 
residents  upon  their  estates  as  the  incident  of  their  prop- 


88  GOVERNMENT  AND  LIBERTY 

erty  in  the  land.  It  was  naturally  the  understanding  of 
the  King  that  he  had  given  to  these  followers  these  prop- 
erties in  possession,  without  definite  tenure,  and  upon  con- 
dition of  certain  service  or  tribute  of  an  honorable  char- 
acter to  be  rendered  to  the  King.  On  the  other  hand,  those 
of  them  especially  who  held  the  larger  estates  regarded  these 
as  their  own  share  of  the  conquested  booty,  over  which 
the  King  had  no  further  power  and  to  which  he  had  no 
further  claim.  In  other  words,  the  King  considered  these 
properties  as  under  feudal  tenures,  tenures  according  to 
which  the  ultimate  property  remained  in  the  Crown,  while 
the  Manorial  Lords  regarded  them  as  of  allodial  tenure, 
tenures  according  to  which  the  ultimate  property,  as  well 
as  the  immediate  possession,  was  in  the  Lord.  This  differ- 
ence of  view  upon  this  fundamental  question  was  bound 
to  force  the  Manorial  Lords  to  combine,  to  organize  for 
the  protection  of  their  property  rights  as  they  conceived 
them,  against  the  Crown.  Finally  the  Salians  who  still 
inhabited  the  Eastern  part  of  the  Kingdom,  the  Germanic 
soil  along  and  east  of  the  Rhine,  and  the  other  Ger- 
man tribes  which  had  been  subjected  to  the  Salian  King, 
viz.:  the  Riparian  Franks  and  the  Alemanni,  still  re- 
tained the  traditions  of  the  primitive  German  Consti- 
tution in  sufficient  degree  at  least  to  render  the  des- 
potic Government  of  a  King  over  them  a  practical 
impossibility. 

Here  were,  in  brief,  the  elements  which  even  separately 
were  sufficient  to  protect  the  Liberties  of  the  Individual 
against  a  Royal  despotism;  in  combination  they  threat- 
ened the  sacrifice  of  Government  to  Liberty,  i.  e.,  they 
threatened  to  produce  anarchy..  The  struggle  which  be- 
gan before  the  death  of  Clovis  in  511  continued  with 
somewhat  varying  fortunes  for  a  hundred  years,  always 


THE  EFFORT  OF  EUROPE  89 

tending  in  the  long  run  to  the  triumph  of  the  ideas  of  the 
Nobles  and  Clergy  in  regard  to  their  immunity  from  the 
Royal  authority.  The  division  of  the  Kingdom  between 
the  four  sons  of  Clovis  in  511,  according  to  the  old  Salic 
law  of  the  descent  of  landed  property,  and  a  second  divi- 
sion between  the  sons  of  Chlotaire  I  in  561,  after  a  short 
reunion  of  all  the  parts  under  this  sole  survivor  of  the 
sons  of  Clovis,  weakened  the  Royal  power  and  consequently 
aided  the  Nobles  and  the  Clergy  in  securing  a  further  ex- 
emption from  the  King's  Government.  Meanwhile  the  con- 
fusion which  reigned  everywhere  forced  the  small  land- 
holders to  seek  the  protection  of  their  noble  neighbors  and 
the  price  of  this  protection  was  the  surrender  of  their  little 
properties  to  their  respective  protectors,  retaining  the  pos- 
session of  them  and  paying  the  protector  tribute  for  the 
possession.  It  also  caused  the  inhabitants  of  the  cities  to 
come  more  and  more  under  the  government  of  their  re- 
spective Bishops.  The  King's  governmental  agents  in  the 
localities,  viz.:  the  Counts,  were  thus  limited  more  and 
more  in  the  territorial  extent  of  their  respective  jurisdic- 
tion over  the  ordinary  subjects  of  the  realm. 

It  was  the  custom  of  the  Frankish  Kings  to  reward  their 
Counts  by  attaching  an  estate  to  the  office.  As  now  the 
Count's  jurisdiction  over  the  ordinary  subjects  was  nar- 
rowed, he  too  gave  personal  protection  to  the  small  land- 
owners around  his  estate  upon  like  terms  as  the  Manorial 
Lords.  His  official  power  helped  him  to  force  such  per- 
sons into  such  private  relation  to  himself.  In  other  words, 
as  his  official  power  grew  less,  he  developed  into  a  Manorial 
Lord  with  private  jurisdiction  over  the  tenants  of  his 
official  estate  as  well  as  those  of  his  private  estate,  and  as 
the  two  were  inextricably  commingled,  he  claimed  to  hold 
the  official  estate  as  heritable  property  and  the  office  of 


90  GOVERNMENT  AND  LIBERTY 

Count  also,  which  now  became  more  and  more  the  incident 
of  the  estate. 

Such  was  the  condition  of  the  Kingdom  at  the  begin- 
ning of  the  seventh  century,  when  the  Nobles  and  Clergy 
combined  to  enforce  their  claims  against  the  Crown.  The 
Nobles  were  led  by  Pippin  of  Landen,  the  Chief  of  the  Nobles 
of  the  Eastern  part  of  the  Kingdom,  then  called  Austrasia, 
and  the  Clergy  were  led  by  Arnulf  the  Bishop  of  Metz. 
They  resolved  to  restore  the  unity  of  the  Kingdom  by  mak- 
ing Chlotaire  II  sole  King,  force  him  to  rule  through  three 
Mayors  of  the  Palace,  one  for  each  of  the  existing  divisions 
of  the  Kingdom,  viz.:  Neustria,  the  Western,  Austrasia, 
the  Northeastern,  and  Burgundy,  the  Southeastern,  and  to 
extort  from  him  a  charter  of  their  liberties,  rights,  and 
privileges.  This  all  came  to  pass  in  the  years  614  and  615. 
Of  these  three  provisions  of  reform,  the  one  most  important 
to  the  question  we  are  discussing  is,  of  course,  the  charter 
of  liberties.  This  comprehended,  first,  the  acknowledg- 
ment on  the  part  of  the  Crown  of  the  hereditary  tenure  to, 
and  full  property  in,  all  the  landed  estates  of  the  Nobles 
and  confirmation  of  all  the  grants  to  the  Bishops  as  of  per- 
petual force;  second,  complete  restitution  of  all  properties 
which  any  of  the  Kings  had  taken  from  Nobles  or  Bishops; 
third,  the  independence  of  the  election  of  the  Bishops  by 
the  Clergy  and  people;  fourth,  independence  of  the  Judicial 
Magistrates  and  the  right  of  every  person  to  a  standing  in 
Court;  fifth,  immunity  of  the  Clergy  from  responsibility 
to  the  Royal  Courts  and  widening  of  the  jurisdiction  of  the 
Church  tribunals;  lastly,  abolition  of  the  taxes  levied  by 
the  Kings  on  the  estates  of  the  Nobles  and  of  the  Church. 
The  Nobles  and  Clergy  proposed  as  a  body,  under  the  direc- 
tion of  Pippin  and  Arnulf,  to  enforce  the  observance  and 
execution  of  these  pledges.  Furthermore,  they  resolved  to 


THE  EFFORT  OF  EUROPE  91 

elect  in  each  division  the  Mayor  of  the  Palace  through 
whom  the  King  should  rule.  Here  was  certainly  a  con- 
scious attempt  on  the  part  of  the  higher  classes,  what  we 
may  call  the  aristocracy  of  the  Kingdom,  to  reconstruct 
Government,  give  it  its  proper  unity  and  authority,  define 
Liberty,  and  reconcile  the  two  in  a  more  advanced  political 
system. 

Let  us  examine  now  a  little  critically  just  what  this 
movement  effected.  It  certainly  secured  the  Nobles  and 
Clergy  sufficiently  in  the  enjoyment  of  Individual  Liberty 
and  Immunity  against  governmental  power.  In  fact  it 
went  too  far  in  this  direction,  because  the  Nobles  and 
Bishops  were  not  simply  private  persons  and  the  privileges 
secured  to  them  were  not  simply  of  a  private  nature.  The 
properties  confirmed  to  them  were  the  original  domain  of 
the  state,  and  their  withdrawal  from  the  duty  of  contribu- 
tion to  the  Government  left  the  Government  without  any 
sufficient  revenue  to  accomplish  its  ends.  Again  the 
Nobles  and  Bishops  were  local  Governors  over  the  inhabi- 
tants of  the  manors  and  of  the  cities.  The  withdrawal  of 
their  jurisdictions  from  Royal  supervision  was  a  step  in 
the  direction  of  the  universal  dissolution  of  the  Kingdom, 
i.  e.j  in  the  direction  of  anarchy.  And  lastly  in  spite  of 
the  provision  that  every  person  should  have  a  standing  in 
the  Royal  Courts,  the  fact  that  the  Judges  of  the  Royal 
Courts,  viz.:  the  Counts,  were  themselves  developing  pri- 
vate manorial  jurisdictions  in  the  manner  already  indicated, 
at  the  expense  of  their  official  powers,  helped  on  the  general 
trend  of  the  development  of  the  aristocratic  Republic  under 
monarchic  appearance,  the  principle  of  which  generally  is 
oppression  downward  coupled  with  defiance  upward. 

In  less  than  ten  years  from  the  establishment  of  the 
Constitution  of  Chlotaire  II,  the  aristocratic  development 


92  GOVERNMENT  AND  LIBERTY 

had  proceeded  so  far,  especially  in  the  Eastern  part  of  the 
Kingdom,  that  Chlotaire  was  compelled  to  send  his  eldest 
son,  Dagobert,  still  in  youthful  years,  to  Austrasia  and  allow 
him  to  set  up  a  quasi-independent  rule  under  the  direction 
of  Pippin  of  Landen  and  Bishop  Arnulf.  This  showed 
how  much  or  rather  how  little  the  Nobles  regarded  the 
unity  of  the  Kingdom  which  they  had  less  than  ten  years 
before  insisted  on.  In  628  Chlotaire  II  passed  from  earth, 
leaving  two  sons,  Dagobert  and  Charibert.  Dagobert  at 
once  asserted  his  sole  right  to  the  whole  Kingdom.  He 
appears  to  have  done  this  of  his  own  initiative.  He  was 
still  young,  but  he  seems  to  have  been  a  real  statesman. 
He  saw,  at  the  outset,  that  to  realize  his  purpose  of  the  re- 
juvenation of  the  Royal  authority  he  must  proceed  from 
Neustria,  instead  of  aristocratic  Austrasia,  as  his  nucleus 
of  power.  He  left  Austrasia  to  Pippin  and  Arnulf,  went 
into  Neustria,  set  up  his  court  at  Paris,  was  the  founder  of 
Paris  as  the  capital  of  France,  and  undertook  to  restrain 
the  Nobles  and  the  Clergy  and  to  elevate  the  common 
people  and  to  administer  even-handed  justice  to  all  in  the 
Royal  Courts.  His  success  in  Neustria  was  very  great  and 
promised  the  restoration  of  the  Royal  power  everywhere. 
But  again  the  Austrasian  Nobles  demanded  a  separate 
King  and  Dagobert  was  obliged  to  send  his  three-year-old 
boy  Sigebert  to  give  the  outward  form  of  authority  to  any- 
thing which  Pippin  and  Arnulf  might  choose  to  do. 

In  638  the  good  King  Dagobert  died,  leaving  Sigebert, 
a  boy  of  eight  years,  as  King  in  Austrasia,  and  Clovis  II, 
a  child  of  four,  as  King  in  Neustria.  The  aristocratic 
principle  had  triumphed  completely  over  the  monarchic. 
The  period  of  the  Rois  Faineants  had  begun.  The  King- 
ship was  now  used  by  the  Nobles  and  Clergy  to  cloak  their 
own  actual  rule.  They  had  entirely  abandoned  their  orig- 


THE  EFFORT  OF  EUROPE  93 

inal  function  of  a  check  upon  governmental  despotism  in 
behalf  of  Individual  Liberty  and  had  become  an  unlimited 
aristocratic  Government,  but  with  a  bond  between  its  con- 
stituent elements  so  slender  that  the  despotic  unity  was 
almost  immediately  rent  asunder  by  the  ambition  of  every 
Noble  and  every  Bishop  to  rule  independently  in  his  lo- 
cality. The  common  man  went  to  the  ground  everywhere, 
except  in  the  cities  under  the  milder  rule  of  the  Bishops. 
Elsewhere  he  became  the  vassal  or  tenant  or  slave  of  the 
Manorial  Lord.  Apparently,  Government  had  been  sacri- 
ficed to  Liberty,  but  this  was  true  only  in  behalf  of  the 
Nobles  and  Bishops.  As  to  the  common  subject,  Liberty 
had  been  sacrificed  to  the  unlimited  local  Government  of 
the  Nobles  and  the  Bishops.  Fifty  years  more  of  this 
wretchedness  followed  until  the  Nobles  and  Bishops  them- 
selves were  made  to  feel  that  their  excessive  independence 
must  be  placed  within  bounds. 

The  Nobles  of  Austrasia  elected  Pippin  Heristal,  the 
grandson  of  Pippin  of  Landen,  their  Duke  as  well  as  Mayor 
of  the  Palace  to  the  Merwing  King  in  Austrasia,  and  in 
the  battle  of  Testry  in  687,  he  and  his  Austrasians  con- 
quered Neustria,  and  he  assumed  the  rule  in  Neustria  and 
Burgundy,  i.  e.,  the  other  parts  of  the  Kingdom,  as  Mayor 
of  the  Palace  to  the  Merwings.  With  this  the  Royal  power 
throughout  the  Kingdom  was  in  one  hand  again,  the  hand 
of  the  mighty  Duke  of  Austrasia,  in  whose  house  the  May- 
orship  of  the  Palace  in  Austrasia  had  become  virtually 
hereditary.  Still  the  Pippins  did  not  yet  venture  to  wield 
the  Royal  power  in  their  own  names.  The  legitimacy  of 
the  Merwings  was  too  strong  a  spiritual  power  among  the 
masses  to  risk,  as  yet,  revolution  over  a  name.  The  Pip- 
pins must  win  the  favor  of  the  Bishops,  and  the  Bishops 
and  Clergy  must  educate  the  people  before  this  step  could 
be  safely  taken. 


CHAPTER  V 

THE  CAROLINGIAN  EMPIRE 

THE  creation  of  the  Holy  Roman  Empire  of  the  German 
Nation  in  the  last  three-quarters  of  the  eighth  century  was 
the  mightiest  work  of  the  entire  Middle  Ages.  This  great 
Institution  bridged  the  whole  way  between  ancient  and 
modern  times.  The  appreciation  of  the  elements  out  of 
which  it  was  constituted  and  the  welding  of  these  together 
into  the  vast  state  body  bearing  this  name  give  evidence 
of  an  intellect  and  a  will,  in  a  word  of  a  personality,  whose 
equal  is  difficult  to  find  throughout  historic  time.  In  fact 
we  cannot  attribute  this  great  work  to  a  single  personality. 
In  the  first  place,  four  of  the  most  mighty  state  builders 
which  the  world  has  produced  out  of  a  single  family  wrought 
upon  it  through  more  than  a  hundred  years.  Pippin  of 
Heristal,  Charles  Martel,  Pippin  the  Short,  and  Charles 
the  Great,  and  with  these  we  must  connect  in  the  first  rank 
the  Bishops  of  Rome,  Gregory  III,  Zacharias,  Stephen  III, 
and  Leo  III,  and  the  great  Archbishop  of  Metz,  Boniface, 
to  say  nothing  of  hundreds  of  others,  lay  and  clerical,  who 
contributed  no  small  share.  The  enterprise  was  nothing 
less  than  the  union  of  all  the  German  tribes  and  peoples 
upon  the  European  Continent  into  one  great  state  body 
with  the  West  Roman  and  Romanic  peoples,  having  for 
its  cementing  bond  the  orthodox  Christian  Church  as  rep- 
resented by  the  Bishop  of  Rome,  the  Empire  of  orthodox 
Christendom. 

94 


THE  EFFORT  OF  EUROPE  95 

The  conditions,  ethnical,  social,  political,  and  religious, 
existing  during  the  eighth  century  in  Europe  seemed  to 
make  such  a  consummation  impossible,  but  to  the  eye  of 
the  great  Carolingians  they  really  conspired  to  assist  in 
bringing  it  about.  I  am  not  writing  a  history  exactly  and 
will  not,  therefore,  hold  myself  to  a  sequence  of  dates  in 
giving  a  brief  survey  of  these  conditions.  There  was,  first, 
the  internal  situation  of  the  Kingdom.  As  I  have  before 
indicated,  the  Royal  authority  had  ceased  to  be  any  real 
power.  The  Manorial  Lords  and  the  Bishops  had  absorbed 
the  entire  Royal  domain,  and  had  organized  almost  inde- 
pendent territorial  Governments  within  their  respective 
estates.  The  Bishops,  moreover,  exercised  quasi-govern- 
mental powers,  i.  e.,  powers  which  could  be  executed  by 
physical  force  against  all  opposition,  over  the  entire  popu- 
lation, that  part  not  resident  upon  the  Episcopal  estates 
as  well  as  that  so  resident.  Then  the  original  Royal  offi- 
cials, the  Counts  and  Margraves,  whose  jurisdiction  over  the 
Counties  had  become  so  honeycombed  by  the  development 
of  the  Manors  and  the  Episcopal  estates  that  but  little  was 
left  to  them  except  their  jurisdiction  over  the  estates  at- 
tached to  their  offices  as  salary  for  their  services,  had  suc- 
ceeded in  making  these  estates  private  property  and  ruled 
therein  as  Manorial  Lords  rather  than  as  Royal  officials. 
Finally,  the  faineant  Merwings  themselves  were  under  the 
complete  control  of  their  Majordomo,  now  the  powerful 
leader  of  the  Austrasian  Nobles,  the  chief  of  the  house  of 
the  Pippins.  In  the  second  place,  the  Kingdom  and  Chris- 
tendom itself  were  threatened  from  without,  and  from  two 
directions.  The  Moslem  invasion  had  rolled  over  Northern 
Africa,  over  Hispania,  and  across  the  Pyrenees  themselves 
and  was  already  advancing  toward  the  valley  of  the  Loire, 
and  the  Pagan  Saxons  were  threatening  the  boundaries  on 


96  GOVERNMENT  AND  LIBERTY 

the  northeast.  In  the  third  place,  the  Lombards  who  had 
occupied  the  Po  valley  were  preparing  to  make  conquest 
of  the  Exarchate  of  Ravenna,  the  seat  of  the  Roman  Gov- 
ernor in  Italy,  and  the  Roman  Emperor  at  Constantinople 
was  in  conflict  with  the  Bishop  of  Rome  over  the  so-called 
worship  of  the  images  in  the  Western  Churches.  Finally, 
the  Bishop  of  Rome  not  only  exercised  the  secular  Govern- 
ment as  well  as  the  ecclesiastical  authority  in  Rome  but 
claimed  the  Patriarchal  power  over  the  whole  West  Roman 
Empire,  i.  e.}  the  power  to  appoint  Archbishops  and  vest 
them  with  control  over  the  Bishops  and  thus  re-establish 
hierarchic  unity  in  the  Western  Church. 

No  one  can  tell  whether  the  Carolings  planned  the  course 
which  they  followed  in  view  of  these  conditions  at  the 
beginning  or  at  any  given  point  in  their  progress,  but  all 
they  did  was  so  rational,  so  consistent,  and  so  successful 
that  it  all  appears  as  parts  of  a  consecutive  whole.  They 
seemed  to  understand  that  they  must  have  at  the  same 
time  the  support  of  a  great  army  and  also  of  the  Church 
as  a  unit.  How  could  they  secure  both  of  these  things, 
when  the  means  for  constructing  and  maintaining  such  an 
army  must  be  taken  from  the  Church,  or  better,  from  the 
Bishops  ?  The  vast  Crown  domain  which  the  Merwings  had 
bestowed  upon  the  Bishops  must  be  reclaimed  by  the 
Carolingian  Chief  and  its  use  bestowed  upon  laymen  as 
pay  for  military  service.  How,  then,  could  the  support  of 
the  Church  be  secured  and  retained  under  this  scheme  of 
confiscation  of  Church  property  ?  The  Carolingians  found 
the  way.  They  sought  and  secured  the  friendship  of  the 
Bishop  of  Rome  by  delivering  him  both  from  the  power 
of  the  Lombards  and  the  Byzantinian  Emperors,  and  by 
re-establishing  his  position  of  Patriarch  of  the  entire  West- 
ern Church,  and  finally  by  giving  him  the  Exarchate  of 


THE  EFFORT  OF  EUROPE  97 

Ravenna  as  Church  domain  over  which  he  should  exer- 
cise secular  as  well  as  spiritual  power.  Through  the  Bishop 
of  Rome  and  the  Monks  sent  out  by  him  as  his  Legates  in 
all  directions  they  influenced  the  Bishops  to  abstain  from 
dissipation  and  luxurious  living  and  to  follow  more  closely 
their  spiritual  calling,  and  persuaded  them  that  unless  they 
surrendered  a  part  of  the  properties  which  they  had  re- 
ceived from  the  Merwings  to  the  state,  the  state  would  be 
unable  to  defend  any  of  their  possessions  or  even  their  lives 
and  the  existence  of  the  Church  against  the  Moslems  on 
the  one  side  or  the  Pagans  on  the  other.  Many  of  the 
Bishops  yielded  readily  to  these  views  and  those  who  did 
not  were  so  overwhelmed  by  the  pressure  from  the  Monks, 
the  Roman  Legates,  the  public  opinion,  and  the  will  of 
the  Carolings  that  the  general  confiscation  was  carried 
through;  and  with  the  restored  domain  the  new  army  of 
liegemen  was  created  by  which  the  Moslems  were  driven 
back  and  the  Lombards  and  the  Saxons  conquered. 

The  results  of  these  movements  and  this  policy  were 
most  important  to  civilization.  They  established,  in  the 
first  place,  the  Papacy  of  the  Bishop  of  Rome,  which  con- 
sisted of  the  Patriarchate  of  the  entire  Western  orthodox 
Church,  whereby  he  could  appoint  the  Archbishops,  effect 
the  union  of  bishoprics  into  archiepiscopal  provinces  and,  by 
the  bestowal  of  the  pallium  upon  the  Archbishops,  vest 
them  with  the  superior  control  over  the  Bishops,  assemble 
Councils  of  the  entire  Church  and  preside  over  them,  cre- 
ate Monastic  orders  and  send  the  members  of  them  as 
Legates  into  every  diocese  to  watch  over  the  conduct  of 
the  Bishops  and  secular  Clergy  and  report  the  same  to 
him,  together  with  the  secular  Government  of  the  City  of 
Rome  and  the  Exarchate  of  Ravenna,  the  so-called  Roman 
Duchy.  Modern  historians,  and  we  moderns  generally, 


98  GOVERNMENT  AND  LIBERTY 

are  inclined,  by  far  too  much  inclined,  to  regard  this  cre- 
ation of  the  Carolings  as  a  great  historical  error,  which 
has  plagued  European  civilization  from  that  day  to  this. 
I  cannot  so  regard  it.  I  must  look  at  it  from  the  point  of 
view  of  the  conditions  which  it  met  and  the  problems 
which  it  solved.  Except  for  the  hierarchic  organization 
of  the  Church  culminating  in  the  Papacy  of  the  Roman 
Bishop,  and  for  the  Monastic  orders  created  by  the  Popes 
and  acting  as  his  immediate  agents  throughout  Western 
Christendom,  the  Church  officials  would  have  become 
completely  demoralized,  would  have  become  territorial 
Lords  with  secular  governmental  functions,  living  in  riotous 
luxuriance,  and  would  have  transformed  the  spirit  of  Chris- 
tian unity  into  an  actual  anarchy  of  hostile  Chieftains,  and, 
except  for  the  temporal  power  of  the  Popes  over  Rome 
and  the  Exarchate,  the  Christian  Church  would  not  have 
been  able  to  check  the  despotism  of  secular  Government. 
Let  it  be  always  remembered  that  at  that  period  of  the 
world's  history  men  had  not  discovered  the  distinction  be- 
tween the  state,  the  unlimited  sovereign,  and  the  Govern- 
ment, its  limited  agent  for  accomplishing  certain  of  the 
state's  purposes,  viz. :  those  which  are  to  be  realized  by  the 
employment  of  physical  force,  if  necessary.  Then  and  on 
that  account,  Government  was  theoretically  unlimited  and 
actually  so,  if  strong  enough  to  execute  its  will.  Until  this 
distinction  should  be  reached  and  Government  should  be 
limited  by  the  state  in  behalf  of  Individual  Liberty,  one  of 
the  elements  of  which  is  the  freedom  of  the  religious  con- 
science, the  Church  organization  was  obliged  to  be  hier- 
archic and  the  head  of  that  organization  was  obliged  to 
have  temporal  power,  in  a  district  and  over  a  population 
large  enough  to  protect  him,  and  through  him  the  Church 
at  large,  against  the  rude  despotism  of  secular  Govern- 


THE  EFFORT  OF  EUROPE  99 

ment.  The  Carolings  committed  no  error  in  the  work 
which  they  did  for  the  development  of  the  Papacy  of  the 
Roman  Bishops.  Without  it  I  conceive  that  the  Christian 
Church  would  have  become  secularized  and  heathenized 
beyond  recognition  and  the  Middle  Ages  would  have  really 
been  that  age  of  darkness  for  which,  in  spite  of  its  remain- 
ing magnificent  monuments  of  civilization,  culture,  and 
enlightenment,  it  has  been  erroneously  held. 

The  other  great  result  of  these  movements  and  this 
policy  was  the  creation  of  the  Holy  Roman  Empire  of  the 
German  Nation,  which  was  the  great  controlling  force  in 
the  civilization  of  the  European  Continent  for  a  thousand 
years  and  held  the  forces  of  anarchy  and  heathenism  at 
bay  until  the  national  developments  of  the  eighteenth  cen- 
tury produced  the  ethnical  and  ethical  conditions  for  the 
new  political  civilization  of  the  modern  time.  The  first 
step  in  this  great  constructive  work  was  the  transfer  of 
the  Royal  power  from  the  decadent  Merwings  to  the  cap- 
able and  powerful  Carolings.  It  is  always  a  critical,  riot 
to  say  a  perilous,  thing  to  effect  a  revolution  like  this. 
To  dispossess  a  family  of  a  throne  held  by  the  principle  of 
hereditary  right  was  felt  then  to  be  an  attack  upon  the 
principle  according  to  which  anybody  held  anything. 
How  sensitive  the  Franks  were  upon  this  point  may  be 
inferred  from  the  incident  of  the  year  687  when  Grimoald, 
the  son  of  Pippin  of  Landen,  sent  the  Merwing  heir  to  an 
Irish  cloister  and  proclaimed  his  own  son  King.  The 
Nobles  felt  at  once  the  demoralization  of  their  own  titles 
by  this  act.  They  rose  en  masse,  seized  Grimoald  and  his 
son,  restored  the  Merwing  heir,  Clovis  II,  and  delivered 
the  Royal  desecrators  of  the  throne  into  his  hands,  who 
immediately  executed  them.  The  Carolings  were  taught 
by  this  experience  that  they  must  bide  their  time  until  a 


ioo  GOVERNMENT  AND  LIBERTY 

new  morale  should  be  created  and  embraced  by  the  great 
mass  of  men,  upon  which  this  change  could  be  founded. 
They  resumed  their  old  place  of  Mayor  of  the  Palace  to 
the  Merwings  and  addressed  themselves,  among  other 
things,  to  the  work  of  inventing  a  new  principle  of  legiti- 
macy by  which  to  effect  the  ominous  and  all-important 
change  of  dynasty.  They  must  have  had  this  in  mind  in 
approaching  and  cultivating  the  Bishop  of  Rome,  for,  after 
more  than  two-thirds  of  a  century  from  the  death  of 
Grimoald,  Pippin  the  Short,  feeling  that  the  time  was  ripe 
for  a  new  effort,  made  as  his  first  step  an  appeal  to  the 
Bishop  of  Rome  for  his  approval  of  the  assumption  of  the 
Crown  by  the  Carolings.  The  Bishop  seems  also  to  have 
been  fully  prepared  for  the  appeal.  He  approved  the 
change  of  dynasty  and  commanded  the  great  Archbishop  of 
Metz,  Saint  Boniface,  the  Apostle  to  the  Germans  and  the 
Bishop's  Legate  for  the  Frankish  Kingdom,  to  bless  this 
change  by  anointing  Pippin  King  of  the  Franks.  This  was 
done  in  the  year  752  in  the  cathedral  at  Soissons.  The 
Bishop  of  Rome  as  Patriarch  of  the  Western  Church  and, 
therefore,  as  High  Priest  of  the  orthodox  Christian  Church 
thus  created  the  new  morale  for  deposing  and  elevating 
Kings,  viz.:  the  word  of  God  as  voiced  through  him.  It  is 
true  that  there  was  some  sort  of  an  election  or  acclamation 
by  the  Nobles  and  officials,  but,  while  this  gave  assurance 
that  the  fate  of  Grimoald  and  his  son  would  not  be  repeated, 
it  had  no  such  influence  over  the  mind  of  the  masses  as  the 
declaration  of  the  Bishop  through  the  great  Boniface  that 
thereafter  the  Carolings  were  the  rightful  Kings  of  the 
Franks.  A  few  years  later  the  Bishop  himself,  Stephen  III, 
came  from  Rome  to  Rheims  and  reanointed  Pippin  and 
his  sons  Kings  of  the  Franks.  At  the  same  time  he  con- 
ferred upon  Pippin  the  title  of  Patrician  of  Rome  and  laid 


THE  EFFORT  OF  EUROPE  101 

upon  him  the  obligation  of  defending  the  Holy  City  against 
all  enemies,  especially  against  the  Lombards'.  "Tlie -follow- 
ing year,  755,  Pippin  redeemed  his  pledge;  tore  the  Exar- 
chate of  Ravenna  from  the  Lombards  and  conferred  it,  as 
to  its  Government  and  public  properties,  upon  the  Bishop 
of  Rome  as  the  States  of  the  Church.  One  year  later  he 
went  again  across  the  Alps,  inflicted  upon  the  Lombards 
another  disastrous  defeat  and  increased  the  States  of  the 
Church  by  the  cities  of  Rimini,  Pesaro,  Fano,  Sinigaglia, 
and  Ancona. 

It  was  reserved,  however,  to  his  great  son  Charles  to 
put  the  capstone  and  the  finish  upon  the  great  work.  For 
thirty  years,  from  770  to  800,  Charles  extended  by  force 
of  arms  the  boundaries  of  the  Kingdom  until  it  stretched 
from  the  Eider  in  the  Danish  peninsula  to  the  Ebro  in  the 
Spanish  and  from  the  Atlantic  Ocean  on  the  West  to  the 
coasts  of  Dalmatia  in  the  East.  It  included  all  of  the 
German  tribes,  the  Italian  and  Gallo-Roman  populations, 
and  a  large  Slavic  element.  It  was  no  longer  a  Frankish 
Kingdom  in  fact,  but  the  Empire  of  Continental  Europe. 
The  moment  had  come  for  the  new  creation,  and  it  was 
undertaken,  again,  in  understanding  with  the  Bishop  of 
Rome.  In  799  the  inhabitants  of  the  City  of  Rome  re- 
volted against  the  Government  of  Bishop  Leo  III.  Leo 
fled  across  the  Alps  to  the  camp  of  King  Charles  at  Pader- 
born.  There  these  two  great  characters  laid  their  heads 
together  and  out  of  their  deliberations  sprang  the  plan  of 
the  Holy  Roman  Empire  of  the  German  Nation.  What 
that  plan  was  the  sequel  will  show.  Meanwhile  King 
Charles  sent  the  Bishop  back  to  Rome  with  a  powerful 
escort  of  loyal  Franks  to  restore  him  to  power  and  protect 
him  in  the  exercise  of  his  functions  until  he,  Charles,  should 
come  and  sit  in  judgment  between  the  Bishop  and  his  ac- 


102  GOVERNMENT  AND  LIBERTY 

cusers...  At  the  end  of  the  year  the  King  advanced  to 
Rome  at  the  head  of  a  large  force.  No  opposition  what- 
soever raised  its  head.  He  assembled  a  Council  of  Bishops 
and  bade  them  proceed  with  the  trial  of  Leo,  but  they, 
probably  prompted  by  the  King,  disavowed  jurisdiction 
over  the  incumbent  of  the  Apostolic  seat,  and  the  King 
disciplined  his  accusers.  Then  came  the  final  act.  On 
Christmas  Day,  according  to  the  time-reckoning  then  em- 
ployed the  first  day  of  the  year  800,  Charles  and  his  Chief- 
tains and  the  leading  Romans  assembled  in  the  Apostolic 
Church  to  hear  the  mass  read  by  Leo  himself.  Suddenly, 
as  if  by  inspiration,  the  Bishop  approached  the  kneeling 
King,  anointed  him  with  holy  oil  and  placed  a  Crown  of 
gold  upon  his  head  and  the  surrounding  multitude  shouted: 
"To  Carolus  Augustus,  crowned  of  God,  great  and  peaceful 
Emperor  of  the  Romans,  life  and  victory."  The  die  was 
cast.  The  great  act  was  performed  which  determined  the 
political  history  of  Continental  Europe  for  the  next  thou- 
sand years. 

Let  us  now  examine  the  system  of  Government  and  Lib- 
erty resulting  from  this  combination  of  elements  and  forces 
in  somewhat  larger  detail.  In  the  first  place,  the  Imperium 
was  unlimited  authority,  sovereignty,  derived  from  God, 
a  power  over  subjects,  not  a  power  conferred  by  the  peo- 
ple or  by  anything  human.  This  was  expressed  in  the  ac- 
claim of  the  multitude:  "crowned  of  God,"  and  was  also 
declared  by  the  Bishop  Patriarch  of  Rome,  as  God's  human 
agent  in  transmitting  such  authority.  We  will  not  enter, 
at  this  point,  into  the  question  whether  the  Bishop  of 
Rome  might  exercise  any  discretion  of  his  own  in  with- 
holding this  authority  or  withdrawing  it.  That  will  come 
later.  No  such  idea  prevailed  at  the  moment  of  this  first 
coronation.  The  new  Emperor  unquestionably  considered 


THE  EFFORT  OF  EUROPE  103 

the  Imperial  sovereignty  as  his  own,  to  be  transmitted  to 
his  family  descendants  without  any  interference  with  the 
inheritance  by  anybody.  We  may  say,  then,  that  we  have 
here  a  solution  of  the  first  problem  of  political  science,  viz. : 
the  question  of  sovereignty,  unlimited  original  authority. 
It  was  the  very  substance  of  the  Imperium  and  it  was  ex- 
ercised by  the  Emperor. 

The  Emperor  was  also  the  Government  as  well  as  the 
Sovereign,  unless  he  should  choose  to  create,  as  Sovereign, 
a  Constitution  or  charter  and  establish  through  it  a  Gov- 
ernment separate  from  himself  and  vest  it  with  powers 
and  impose  upon  it  limitations.  This  he  did  not  do.  In 
fact,  the  distinction  in  idea  between  sovereignty,  i  e.,  the 
state,  and  Government,  the  agent  of  the  state  for  accom- 
plishing certain  ends  by  physical  force,  had  not  arisen  in 
the  thought  of  the  age.  The  Sovereign  was  the  Govern- 
ment. The  state  ruled  immediately.  We  may  call  this 
form  of  Government  immediate  Government,  which  means 
unlimited  or  despotic  Government  in  theory.  Whether 
such  a  Government  may  be  able  to  realize  its  despotic 
power  or  not  is  another  question.  In  analyzing  the  Caro- 
lingian  Constitution,  it  is  sufficient  for  us  that  we  start  out 
from  the  principle  of  the  God-conferred  sovereignty  of  the 
Emperor.  It  makes  the  way  easy  for  us.  We  do  not  have 
to  consider  at  all  whether  the  Emperor,  as  Government, 
has  the  authority  to  do  one  thing  or  is  prohibited  from 
doing  another  thing.  Anything  that  the  Emperor  does  or 
commands  is  lawful.  His  sovereignty  makes  it  lawful. 
The  civilization  of  the  Orient  and  of  the  Roman  Empire 
had  prepared  the  minds  of  men  to  appreciate  and  enter- 
tain this  idea.  We  start  then  with  the  Emperor  as  Sov- 
ereign and  Government,  the  source  of  all  law,  of  all  office 
and  authority,  of  all  rights,  immunities,  privileges,  and 


io4  GOVERNMENT  AND  LIBERTY 

honors.  It  is  true  that  there  existed  already  bodies  of 
custom  and  of  something  like  law  in  the  different  parts  of 
the  Empire,  and  officials  and  other  exercisers  of  authority 
and  persons  enjoying  immunities  and  privileges  of  various 
kinds,  but  these  must  all  now  be  considered  as  further  ex- 
isting by  permission  of  the  Emperor,  and  subject  to  his 
disposition.  The  fact  that  he  allowed  much  to  remain  as 
it  was  and  proceeded  only  gradually  in  introducing  changes 
must  not  confuse  us  as  to  the  theory  of  the  Imperial  au- 
thority. 

With  such  a  theory  of  Government  the  next  point  to  be 
considered  is  not  the  system  of  Assemblies,  but  the  official 
system,  since  the  Assemblies  were  composed  chiefly,  if  not 
entirely,  of  the  Officials.  Charlemagne  had  already  had 
sufficient  experience  with  the  holders  of  the  Ducal  office,  i.  e., 
the  office  of  a  leader  with  large  military  functions  and  dis- 
cretion over  the  inhabitants  of  a  considerable  territory,  gen- 
erally on  the  frontier,  and  claiming  title  by  hereditary 
right;  and  yet  it  was  not  possible  to  protect  the  boundaries 
of  the  Empire  against  the  sudden  incursions  of  foreign 
foes  without  an  office  with  something  of  this  nature,  cer- 
tainly as  to  discretionary  military  powers.  The  adminis- 
trative policy  finally  adopted  by  Charlemagne  was  what 
we  would  term  the  County  system.  He  divided  the  Em- 
pire into  small  districts  in  the  interior  and  into  districts 
of  increasing  size  on  the  frontiers,  and  appointed  as  general 
administrative  officer  in  each  a  Count,  Graf,  Gerifa,  Sheriff. 
On  the  frontiers  in  the  larger  districts  his  Counts  were 
vested  with  larger  military  discretion  and  were  called 
Markgrafen,  Margraves,  i.  e.,  Counts  in  the  Marks,  Counts 
in  frontier  districts.  The  tenure  in  every  case  was  appoint- 
ment by  the  Emperor,  and  the  term  was  for  life,  unless  dis- 
missed before  the  end  of  such  term  by  the  Emperor.  The 


THE  EFFORT  OF  EUROPE  105 

powers  of  the  Count  were  those  of  general  administration. 
They  executed  the  orders  of  the  Emperor  in  the  several 
districts  and  administered  justice  in  his  name.  They  held 
the  chief  military  command  and  also  such  police  authority 
as  was  then  exercised  by  the  state.  Subject  to  them  as 
inferior  officers  were  the  Centenarii  and  the  Vicars,  usually 
appointed  by  the  Count  or  by  the  Emperor  on  the  Count's 
nomination.  They  discharged  usually  the  judicial  powers 
and  the  police  powers  of  the  Count,  while  he  was  occupied 
more  with  the  powers  of  political  and  military  administra- 
tion. The  Emperor  appointed  the  Counts  and  Margraves 
from  any  class  of  the  people,  except  that  among  the  Saxons, 
as  a  sort  of  solatium  to  the  conquered  Chiefs,  he  usually 
selected  them.  It  was  at  the  outset  no  evidence  of  nobility 
that  one  held  the  office  of  Count.  To  the  Count's  office 
was  attached  usually  a  landed  estate,  the  usufruct  of  which 
constituted  the  salary  of  his  office.  This  estate  continued 
to  be  the  property  of  the  Crown,  always  in  theory  and  at 
first  in  fact,  only  the  possession  or  use  of  it  going  with  the 
office. 

The  County  system  of  administration  was,  however, 
honeycombed  in  very  large  degree,  first  by  the  Municipali- 
ties and  second  by  the  Manorial  estates.  The  Municipali- 
ties, the  Cities,  especially  those  situated  in  the  Romanic 
parts  of  the  Empire,  were  governed  by  the  Bishops  in  most 
respects.  The  Bishops  were  the  administrators  of  the 
Roman  law,  which  was  the  system  of  private  law  still  ob- 
taining between  the  Romanic  inhabitants,  since  law  was 
then  regarded  as  personal,  the  Franks  being  judged  accord- 
ing to  Frankish  law  and  the  Romans  and  the  Gallo-Romans 
according  to  the  Roman  law.  The  Emperor  kept  a  Count 
in  each  Municipality,  therefore,  to  administer  the  Frankish 
law  between  Franks  and  to  sit  in  judgment  with  the 


io6  GOVERNMENT  AND  LIBERTY 

Bishop  where  the  controversy  was  between  a  Frank  and  a 
Roman.  He  also  sought  to  make  the  Bishop  an  Imperial 
officer  by  bringing  his  appointment  more  and  more  into 
his  own  hands,  so  that  the  Bishop  became  a  sort  of  urban 
Count.  Nevertheless  the  Bishops  always  maintained  a 
far  greater  independence  of  the  Imperial  authority  than 
the  Counts  were  able  to  do,  and  were  everywhere  a  check 
upon  the  arbitrariness  of  the  Count's  government.  Then 
the  Lords  of  the  Manorial  estates,  those  created  by  the 
Carolings,  of  which  the  grantees  had  only  the  possession 
and  usufruct,  the  fee,  as  we  would  say,  remaining  in  the 
King  or  Emperor,  as  well  as  those  created  by  the  Merwings, 
and  held  by  the  allodial  tenure,  had  gradually  assumed  the 
exercise  of  governmental  power  over  the  inhabitants  of 
the  estates  and,  since  the  estates  had  become  hereditary, 
exercised  these  powers  as  a  sort  of  property  incident  to 
the  holding  of  the  estate.  The  Emperor  endeavored  to 
reduce  these  Manorial  Lords  to  the  position  of  Officials, 
to  make  of  them  Counts,  so  to  speak,  in  these  estates. 
But  his  success  was  only  partial  and  finally  failed  altogether. 
In  fact,  as  we  shall  see  later,  his  Counts  became  Manorial 
Lords  instead  of  the  Manorial  Lords  becoming  Counts. 
Lastly,  the  Emperor  saw  himself  necessitated  to  allow  the 
Ducal  power  to  remain  in  a  few  places,  as  in  Brittany,  in 
the  Spanish  Mark,  in  Benevent,  and  at  times  in  Bavaria. 
These  were  all  serious  breaks  in  the  County  system  of 
Government,  which  were  never  entirely  overcome  even  in 
the  reign  of  Charlemagne  himself.  Even  then  they  occa- 
sioned great  irregularities  and  confusion,  and  after  his 
strong  hand  ceased  to  guide  the  helm,  they  increased  from 
year  to  year,  until  the  feudal  system  of  practically  inde- 
pendent local  powers  supplemented  the  Royal  official 
system  altogether. 


THE  EFFORT  OF  EUROPE       107 

Out  of  the  Officials,  lay  and  ecclesiastical,  and  the  Ma- 
norial Lords,  the  Assemblies  were  constituted.  It  is  true 
that  nominally  every  free  Frank  was  entitled  to  appear, 
but  the  number  of  free  Franks  who  were  not  Manorial 
Lords  or  Officials  was  not,  at  this  time,  very  considerable. 
I  should  say  that,  at  this  time,  at  least  nineteen-twentieths 
of  the  population  were  slaves  or  dependants  and  that  this 
proportion  was  rapidly  increasing  from  year  to  year  through 
the  increased  pressure  of  the  military  service  upon  the 
common  freemen.  They  were  being  driven  thereby  to 
give  up  their  little  estates  to  some  Manorial  Lord  or  Bishop, 
and  receive  them  back  in  possession  only  as  the  tenants 
of  the  Lord  or  Bishop  to  whom  they  had  commended  them- 
selves, losing  thereby  their  full  freedom  but  escaping  mili- 
tary duty. 

Practically  the  Assemblies  consisted  of  the  elements 
above  mentioned  and  sometimes  only  of  the  more  important 
men  among  these;  and  since  the  Manorial  Lords  were  in  a 
certain  sense  Officials,  as  well  as  the  Bishops,  we  may  say 
broadly  that  these  bodies  were  the  Emperor's  Officials 
gathered  around  him  for  the  purpose  of  informing  him  of 
the  condition  of  things  in  all  parts  of  the  Empire,  counselling 
him  as  to  measures  and  receiving  his  commands.  They 
were  not  legislative  bodies  in  any  true  sense  of  the  word. 
They  were  rather  the  appointed  Councils  of  the  Emperor. 
They  were  held  for  the  whole  Empire  and  for  the  different 
parts  or  districts  of  it  and  they  were  called  by  the  Emperor 
himself  or  by  some  Official  authorized  by  the  Emperor  to 
hold  them.  The  Emperor  himself  presided  over  the  Im- 
perial Assemblies,  i.  e.,  those  representing  the  entire  Em- 
pire and  presented  the  business  for  them.  After  obtaining 
their  advice,  the  Emperor  decreed  the  measures  of  law. 
These  were  written  down  by  the  scribes,  usually  clergymen, 


io8  GOVERNMENT  AND  LIBERTY 

and  proclaimed  by  the  Emperor  as  law.  They  were  en- 
titled Capitularies,  and  we  have  collections  of  them  which 
give  the  best  idea  we  can  get  of  the  nature  of  the  Imperial 
legislative  system.  They  manifest,  in  the  first  place,  that 
the  Emperor  was  the  supreme  and  exclusive  lawgiver  and 
that  the  Assemblies  of  his  own  Officials  were  only  his  ad- 
visers. They  show,  in  the  second  place,  that  the  Emperor's 
legislative  power  was  entirely  unlimited  and  that,  although 
there  were  bodies  of  law,  both  German  and  Roman,  extant 
and  applied,  they  were  so  by  Imperial  permission  and  could 
be  changed  or  abolished  by  the  Emperor  at  pleasure.  And 
they  demonstrate,  lastly,  that  there  was  as  yet  no  dual 
or  federal  system  of  legislation  or  of  Government  in  the 
Empire,  since  they  cover  every  possible  subject  from  the 
organization  of  the  Army  to  the  price  of  commodities. 
The  sovereign  Emperor  could  only  be  limited  in  his  Govern- 
ment by  himself  and  self-limitation  is  no  limitation  in  the 
theory  of  political  science. 

It  would  appear  from  this  brief  survey  of  the  Carolingian 
Imperial  system  that  in  it  Liberty  had  been,  in  principle 
at  least,  entirely  sacrificed  to  Government,  and  that  the 
problem,  which  we  are  considering,  of  the  reconciliation 
of  Government  with  Liberty,  was  not  treated  by  it  as  hav- 
ing any  existence.  This  is  not,  however,  strictly  true.  In 
the  first  place,  the  Church  was  now,  under  its  hierarchic 
organization,  more  than  ever  before  able  to  protect  the 
Individual  against  the  arbitrariness  of  Government.  It  still 
maintained  all  of  its  rights  and  powers  in  the  state  as  fixed 
under  the  Roman  Imperial  Constitution.  First,  the  right 
of  intervening  between  the  Government  and  the  subject 
when  appealed  to  by  the  subject  for  protection  against 
the  arbitrariness  of  Government.  This  power  was  exer- 
cised by  every  Church  Official  and  did  not  require  action 


THE  EFFORT  OF  EUROPE  109 

by  the  whole  Church  or  any  division  of  it.  Such  slow  and 
clumsy  procedure  would  have  defeated  the  purpose  of  the 
power.  This  was  well  understood  by  the  Bishops  and 
they  never  allowed  themselves  to  acknowledge  any  such 
requirement,  if  the  Government  ever  attempted  to  make  it. 
Second,  the  power  of  according  protection  from  the  Govern- 
ment to  all  persons  seeking  the  asylum  of  the  Churches. 
This  was  a  very  effective  limitation  upon  the  arbitrariness 
of  Government  and  was  often  resisted  by  ruthless  govern- 
mental Officials,  but  the  Bishops  insisted  upon  exercising 
this  power,  often  at  the  risk  of  their  own  lives,  and  did  so 
successfully.  Thirdly,  the  control  by  the  Church  of  the 
domestic  side  of  life,  marriage,  divorce,  baptism,  burial,  ed- 
ucation, care  of  the  poor  and  the  sick,  was  maintained  and 
exercised  through  the  more  voluntary  methods  of  religion, 
instead  of  through  the  physical  power  of  Government. 

If  the  Church  of  the  Carolingian  Empire  had  been  con- 
fined to  the  exercise  of  these  powers,  it  would  have  been  a 
capital  defense  against  the  arbitrariness  of  Government, 
but  for  good  or  for  evil  such  was  not  the  case.  The  gift  of 
vast  estates  to  the  Bishops  by  the  Kings,  estates  inhabited 
and  cultivated  by  a  large  population  of  slaves  and  depen- 
dants, and  the  exemption  of  these  estates  from  the  jurisdic- 
tion of  the  Royal  Officials,  resulting  in  the  exercise  of  all 
the  powers  of  secular  Government  by  the  Bishops  over  them, 
which  situation  the  King  or  the  Emperor  endeavored  to 
meet  and  control  by  appointing  laymen  to  Bishop's  seats, 
who  lived  the  lives  of  worldlings,  oppressed  the  inhabitants 
of  the  estates,  and  scandalized  morals  and  civilization,  all 
this  degraded  the  Church  from  its  high  position  as  defender 
of  the  civil  rights  of  the  people  against  governmental  arbi- 
trariness and  despotism  and  made  of  its  high  officials 
themselves  oppressors  of  the  helpless  and  needy. 


no  GOVERNMENT  AND  LIBERTY 

Still  this  was  not  yet  universally  the  situation.  Among 
the  Bishops  and  especially  among  the  Monastic  Clergy 
were  very  many  genuine  Priests  of  devout  Christian  char- 
acter who  held  high  the  torch  of  Christian  civilization  and 
protected  the  people  against  the  oppression  of  the  semi- 
barbaric  secular  Lords  and  Officials.  The  Church  was  still 
a  mighty  defender  of  the  Civil  Liberty  of  the  people.  How 
the  people  of  Europe  in  the  centuries  between  the  first  and 
the  sixteenth  would  have  fared  without  its  protecting  and 
civilizing  lead,  God  himself  only  knows. 

Charlemagne  established,  however,  another  institution 
as  a  regular  part  of  the  secular  Constitution  of  the  Empire 
with  the  direct  purpose  of  preventing  both  the  secular 
Officials  and  the  Ecclesiastics  from  oppressing  the  common 
subject,  this  was  the  institution  of  the  Missi  Dominici. 
It  had  been  the  custom  even  of  the  Merwings  to  send,  in 
an  irregular  way,  special  agents  into  the  different  districts 
of  the  Kingdom  in  order  to  inform  themselves  of  the  con- 
dition, needs,  and  wishes  of  the  subjects  and  of  the  con- 
duct of  the  Officials.  It  was  Charlemagne,  however,  who 
made  the  irregular  custom  a  regular  continuous  practise  as 
the  most  important  part  of  the  Constitution  and  the  ad- 
ministration. As  a  rule  the  Emperor  appointed  two  Missi 
for  each  Archdiocese  of  the  Empire,  one  an  Ecclesiastic 
and  the  other  a  layman,  neither  of  them  being  an  inhabi- 
tant of  the  district  in  which  he  functioned,  and  having  a 
term  of  a  single  year.  The  purpose  of  such  qualifications 
and  limitations  was,  it  is  quite  evident,  to  secure  able, 
honest,  and  impartial  action  on  the  part  of  the  Missi.  Be- 
sides the  duty  of  reporting  to  the  Emperor,  as  in  the  time 
of  the  Merwings  and  the  first  Carolings,  the  conditions  ob- 
taining in  the  different  parts  of  the  Empire,  they  were 
vested  with  two  most  highly  important  powers.  The  first 


THE  EFFORT  OF  EUROPE  in 

was  the  superior  control  of  the  administration.  The 
Counts,  Bishops,  Abbots,  and  all  other  Officials  within  the 
district  assigned  to  a  pair  of  Missi,  were  held  to  give  strict 
account  of  their  doings  to  the  Missi  and  render  obedience 
to  their  directions.  Inasmuch  as  the  Counts,  Bishops,  and 
Abbots  held  their  offices  for  life,  they  were  continually  ac- 
cumulating property  and  powers,  which  tended  always  to 
a  local  autonomy  in  their  hands.  It  was  the  duty  of  the 
Missi  to  look  after  and  prevent  this  exaggeration  of  power 
in  the  hands  of  the  regular  Officials,  both  lay  and  ecclesias- 
tical. Especially  were  the  Missi  commissioned  with  the 
duty  of  preventing  the  Officials  from  transforming  the 
royal  benefices  into  their  own  property.  Their  duty  was 
the  same  over  against  the  Manorial  Lords  who  held  Royal 
benefices.  These  were  especially  prone  to  absorb  the  Royal 
benefices  into  their  allodial  estates.  Still  further,  it  was 
the  function  of  the  Missi  to  hold  the  freemen  to  the  dis- 
charge of  their  military  duty  and  to  prevent  them  from 
escaping  it  by  commending  themselves  to  the  protection 
of  some  Manorial  Lord,  Bishop,  or  Abbot,  or  to  the  private 
protection  of  a  secular  Official,  thus  giving  the  fee  of  their 
land  to  the  protector  and  retaining  only  the  possession  and 
use.  This  was  a  most  onerous  duty  and  one  which  the  Missi 
found  most  difficult  to  discharge.  But  the  duty  of  greatest 
importance  to  us,  in  this  study,  with  which  the  Missi  were 
charged  was  that  of  protecting  the  common  subject,  especi- 
ally the  poor  and  defenseless,  such  as  widows  and  orphans, 
from  the  arbitrariness  of  the  governmental  Officials,  the 
Bishops  and  Abbots  and  even  the  Manorial  Lords.  They 
were  authorized  to  hold  Courts  and  Assemblies  of  a  judicial 
nature  and  to  hear  all  complaints  against  those  in  authority 
and  to  determine  whether  the  acts  complained  of  were  un- 
lawful stretches  of  power  or  inequitable  or  too  strenuous 


ii2  GOVERNMENT  AND  LIBERTY 

exercises  of  lawful  power,  and  to  give  relief  against  all  such. 
They  were  also  charged  to  exhort  both  subjects  and  those 
in  authority  to  live  according  to  the  golden  rule  of  morals 
and  to  remember  that  governmental  power  must  always  be 
supplemented  by  Christian  conscience  and  character  in 
order  to  work  out  the  ends  of  civilization.  If  we  should 
regard  the  Emperor  simply  as  the  Sovereign,  and  the 
Counts,  Bishops,  Abbots,  and  Manorial  Lords,  separately 
and  in  assembly,  as  the  Government,  charged  with  the 
execution  of  the  powers  vested  in  them  by  the  Sovereign, 
and  the  Missi  as  supreme  Judges  authorized  by  the  Sover- 
eign to  interpret  finally  the  extent  of  the  powers  of  the 
Government  and  of  the  Liberties  of  the  subject  and  to 
protect  the  latter  against  the  former  in  the  enjoyment  of 
their  Liberties  as  well  as  defend  the  Sovereign  against  the 
usurpations  of  the  Government,  then  would  we  have  here, 
indeed,  a  most  intelligible  attempt  to  solve  our  problem  of 
the  reconciliation  of  Government  with  Liberty.  There  is 
not  much  doubt  that  this  was  the  thought  of  the  great 
Emperor  and  of  the  Teachers  in  his  school  of  Political 
Science  at  Aachen.  His  Imperial  system  was  working  out 
in  this  way  and  had  there  been  three  such  successors  to 
Charles  as  his  three  predecessors,  it  would  have  become 
the  well  understood  system  of  the  European  Empire  and 
we  cannot  but  believe  would  have  given  the  Middle  Ages 
a  profoundly  different  turn.  But  this  was  not  to  be  and 
things  which  looked  so  fair  and  promised  such  logical  ar- 
rangement and  results  in  810  were  destined  to  be  plunged 
into  confusion  dire  again  in  820,  to  overcome  which  cost 
centuries  of  thought  and  labor. 


CHAPTER  VI 

THE  ANGLO-SAXON   STATE 

WE  have  in  the  first  century  and  a  half  of  the  develop- 
ment of  the  Teutonic  state  on  British  soil  the  very  best 
possible  example  of  what  the  ancient  German  political 
system  could  do  in  the  reconciliation  of  Government  and 
Liberty.  This  development  was  wrought  by  the  purest 
of  the  German  tribes,  the  Angles,  the  Jutes,  and  the  Saxons, 
all  of  whom  immigrated  into  the  British  Island  before  they 
had  become  modified  in  the  slightest  degree  by  contact 
with  the  civilization  of  the  Roman  Empire  and  of  the 
Christian  Church,  and  who  amalgamated  neither  in  blood 
nor  ideas  with  the  populations  they  found  upon  the  soil 
of  their  newly  conquested  home,  but  drove  them  back 
toward  the  north  and  west  and  settled  themselves  upon 
practically  uninhabited  territory.  They  had  a  clear  field 
upon  which  to  work  out  their  public  polity  in  the  new  land. 
We  have  already  seen  what  that  system  was  in  the  original 
home.  The  outline  of  it,  we  know,  was  the  free  family 
with  its  hide  of  land,  subject  to  the  almost  despotic  rule 
of  the  house  father;  the  union  of  these  house  fathers  into 
the  Assemblies  of  the  village,  the  hundred,  and  the  tribe, 
as  the  basis  of  all  Government,  as  the  electoral  colleges  for 
all  Officials,  and  as  the  Legislatures  and  the  Courts;  the 
choice  by  these  of  the  Mayors  of  the  villages,  the  Princes 
of  the  hundreds,  and  the  Chiefs  of  the  tribes;  and  their  par- 
ticipation in  the  Government  with  these  elected  Officials, 
except  in  time  of  war  or  migration  when  they  elected  tem- 
porary military  Leaders,  Dukes,  and  laid  all  power  in  their 


ii4  GOVERNMENT  AND  LIBERTY 

hands  during  the  period  of  the  movement.  This  was  in 
brief  the  Constitution  which  the  Jutes,  the  Angles,  and  the 
Saxons  brought  to  the  British  Island  in  the  fifth  century 
of  the  Christian  era. 

They  came,  naturally,  under  the  command  of  their 
tribal  Chieftains,  their  Dukes,  or  Earldormen,  as  they 
were  generally  called,  and  they  brought  with  them  their 
women,  their  children,  their  dependants  and  slaves,  their 
cattle  and  other  animals,  and  goods  and  chattels  of  every 
description.  As  tribes  they  settled  down  upon  the  land, 
dividing  the  territory  occupied  by  the  tribe  into  hundreds 
and  villages,  and  parcelling  out  the  land  as  was  the  custom 
in  the  old  Germanic  home.  They  established  the  village 
Assembly  as  chief  police  organization,  the  hundred  Assem- 
bly as  chief  judicial  organization,  and  the  tribe  or  shire 
Assembly  as  chief  legislative  organization  and  ultimate 
authority  in  the  entire  system.  They  elected  their  police 
Magistrates,  their  Princes  or  hundred  men,  and  their  Earl- 
dormen in  these  several  Assemblies  of  the  freemen  and  they 
had  no  priesthood  or  religion  which  placed  any  restraint 
upon  their  political  actions. 

At  the  outset,  Government  was  in  the  hands  of  these 
elected  Officials,  whose  terms  were  either  for  life  or  for 
an  indefinite  period;  and  while  the  Assemblies  participated 
to  a  limited  degree  in  the  exercise  of  governmental  power, 
they  acted  chiefly  as  restraints  upon  that  power  as  exercised 
by  the  Officials.  At  the  outset,  also,  each  tribe  had  its 
own  independent  organization  and,  when  it  settled  down 
upon  the  new  territory,  founded  an  independent  state,  the 
Chief  of  which  was  its  own  Earldorman  or  Duke,  and  who 
in  a  very  short  period  of  time  became  its  King  or  something 
like  it. 

During  the  first  hundred  and  fifty  years  after  the  begin- 


THE  EFFORT  OF  EUROPE  115 

ning  of  the  conquest  the  many  petty  Kingdoms  were  gen- 
erally united  or  merged  into  larger  ones  until,  finally,  just 
before  the  end  of  the  sixth  century,  seven  stood  as  indepen- 
dent of  each  other,  although  acknowledging,  from  time  to 
time,  the  King  of  one  of  them  as  a  quasi-head  of  all  under 
the  title  of  Bretwalda. 

It  is,  however,  the  internal  transformations  which  took 
place  in  these  seven  states  during  this  period  which  is  the 
thing  of  chief  interest  to  us  in  this  study.  These  trans- 
formations, in  so  far  as  they  relate  to  the  subject  which 
we  are  treating,  concern  chiefly  the  altered  character  and 
purposes  of  the  tribal  and  hundred  Assemblies  and  of  the 
Kingship  itself. 

The  Kingship  had  now  everywhere  taken  the  place  of 
the  Dukeship  or  Earldormanship  of  the  invading  tribes. 
The  principle  of  its  title  had  now  become  election  by  the 
Assembly  of  the  freemen  of  the  Kingdom  from  among  the 
male  members  of  the  Royal  race,  the  Assembly  exercising 
the  authority  to  select  the  most  capable  one  of  this  race 
or  family,  according  to  its  own  judgment.  The  Royal 
families  were  the  families  of  the  Dukes  or  Earldormen  of 
the  tribes  who  led  the  tribes  respectively  in  the  conquest 
and  migration  and  each  of  these  claimed  descent  from  the 
heathen  God  Wodan.  The  powers  of  these  Kings  were 
limited  only  by  the  participation  of  the  Assemblies  of  the 
freemen  of  the  Kingdoms  in  their  Government.  The 
merging  of  the  original  Kingdoms,  however,  into  the  seven 
larger  states  left  the  original  Kings  of  these  smaller  media- 
tized Kingdoms  as  Under-Kings  or  Earldormen  of  the  divi- 
sions or  shires  territorially  corresponding  to  these  original 
Kingdoms.  These  Under-Kings,  or  Earldormen,  at  first 
selected  by  the  Assemblies  of  the  freemen  of  their  original 
Kingdoms  from  among  the  male  members  of  their  respec- 


n6  GOVERNMENT  AND  LIBERTY 

live  families,  came,  after  the  consolidation  of  the  smaller 
to  form  the  larger  Kingdoms,  to  be  chosen  by  the  Assem- 
blies of  these  larger  Kingdoms,  while  the  Assemblies  of 
their  original  Kingdoms  became  the  shire-moots  of  the 
shires  over  which  they  now  acted  as  local  Governors. 
Regarding  the  Assemblies  of  the  freemen  in  these  larger 
Kingdoms  as  the  constitutional  basis  of  the  Government, 
rather  than  as  a  part  of  the  Government,  we  have  in 
this  arrangement  a  sort  of  constitutional  self -Govern- 
ment in  the  shires  of  these  respective  Kingdoms,  which 
might  serve  to  limit,  practically,  the  Royal  central 
Government.  If  these  Assemblies  had  maintained  this 
character  and  composition,  they  might  also  have  been  the 
basis  of  a  constitutional  Individual  Liberty  and  might  have 
constructed  organs  to  guarantee  and  safeguard  such  a 
realm  against  the  absoluteness  or  arbitrariness  of  the 
Royal  Government,  but  it  was  exactly  the  change  in  the 
composition  and  character  of  these  Assemblies  which  frus- 
trated all  this,  and  spoiled  the  fair  beginning.  The  cele- 
brated English  historian  of  the  period  of  the  Norman 
Conquest  somewhere  says  in  substance  that  when  the  As- 
sembly of  a  country  of  any  considerable  size  is  primary,  in- 
stead of  representative,  it  always  becomes  oligarchic  and  the 
more  democratic  its  original  constitution  the  more  surely 
will  this  result  follow.  This  was  certainly  the  case  with 
the  Assemblies  of  the  freemen  of  the  seven  English 
Kingdoms  of  Kent,  Essex,  Sussex,  Wessex,  East  Anglia, 
Northumberland,  and  Mercia.  The  common  freemen,  ex- 
cept those  dwelling  about  the  usual  place  of  meeting, 
would  not  attend.  Distance  and  lack  of  time  as  well  as 
growing  indifference  precluded  it.  Only  the  more  im- 
portant personages  appeared,  the  Earldormen  of  the  shires 
and  the  larger  landowners. 


THE  EFFORT  OF  EUROPE  117 

Soon  a  new  element  appeared.  Each  King  began  to 
create  around  his  Court  a  personal  following,  a  body-guard 
so  to  speak,  for  the  protection  of  his  person,  for  the  execu- 
tion of  his  powers,  and  for  a  military  staff  for  the  popular 
militia,  the  freemen  of  the  Kingdom  in  arms.  These  were 
the  King's  Theyns.  Some  of  them  the  King  endowed  with 
land,  others  not,  but  he  was  the  personal  lord  of  them  all 
as  well  as  King  in  the  old  sense  of  leader  of  the  people. 
This  element  now  appears  in  the  general  Assemblies  of  the 
different  Kingdoms.  It  is  an  element  created  by  the  King 
himself,  by  his  own  appointment  and  dependent  on  his 
will.  With  this,  these  general  Assemblies  of  the  Kingdom 
became  Assemblies  of  the  Earldormen,  the  King's  Theyns 
and  the  few  freemen  residing  around  the  place  of  assembly, 
and  perhaps  a  few  of  the  large  holders  of  land  without  office 
from  a  distance.  They  were  now  called  Witenagemots, 
the  Assemblies  of  the  wise  men,  instead  of  the  Assemblies 
of  the  whole  body  of  freemen  of  the  Kingdom.  In  them 
the  King's  Theyns  soon  outnumbered  all  the  other  ele- 
ments taken  together  and  the  acts  of  these  bodies  became 
thus  the  acts  of  the  King's  own  personal  following. 

The  character  as  well  as  the  composition  of  these  bodies 
also  underwent  a  very  important  change.  Instead  of 
maintaining  the  position  of  national  constitutional  Con- 
ventions, so  to  speak,  they  became  now  mere  governmental 
Councils  of  the  Kings,  a  part  of  the  Government,  a  part  too 
only  advisory  and  without  independent  authority.  Changes 
of  a  somewhat  similar  nature  took  place  in  the  character 
and  composition  of  the  shire-moots,  the  Assemblies  of  the 
freemen  of  the  original  Kingdoms.  The  freemen  as  a 
whole  ceased  to  attend  these  also,  and  instead  thereof  a 
small  number  of  them  were  required  by  the  Earldorman 
to  be  present  and  to  act  as  his  assessors  in  judicial  contro- 


n8  GOVERNMENT  AND  LIBERTY 

versies  chiefly.  Only  in  the  Assemblies  of  the  village  com- 
munities did  the  body  of  the  common  freemen  continue  to 
serve  and  act  and  these  Assemblies  were  too  small  and 
unconnected  to  exercise  any  important  limitations  upon 
the  Royal  power,  which  was  now,  under  the  new  conditions 
and  changes,  fast  developing  into  an  absolute  power,  with 
no  constitutional  limitations  in  behalf  of  Individual  Liberty. 
Happily  for  later  England,  at  the  very  moment  when 
the  development  of  the  absolute  Kingship  in  the  Anglo- 
Saxon  state  threatened  to  obliterate  constitutional  Indi- 
vidual Liberty  from  the  system,  an  event  of  mighty  im- 
portance happened,  the  effect  of  which  was  to  infuse  a  new 
morality  and  a  renewed  Individual  Liberty  into  the  public 
polity,  and  into  individual  and  family  life.  It  was  the 
conversion  of  the  Anglo-Saxon  Kingdoms,  or  rather  the 
populations  thereof,  to  Christianity,  the  Roman  Church 
Christianity.  At  the  close  of  the  sixth  century  the  Bishop 
of  Rome,  Gregory  the  Great,  sent  Augustine  and  his  Monks 
to  England  for  the  conversion  of  the  Anglo-Saxons  from 
their  heathenism.  The  Christian  Church  had,  it  is  well 
known,  been  introduced  into  Britain  during  the  period  of 
the  occupation  of  the  Island  by  the  Roman  Empire  and 
the  Celtic  subjects  had  embraced  the  Christian  religion, 
but  when  in  the  fifth  century  the  Roman  legions  and  the 
Roman  Government  were  withdrawn  from  Britain  and 
when  the  east,  middle,  and  south  of  the  Island  were  oc- 
cupied by  the  Jutes,  Angles,  and  Saxons,  exterminating  or 
driving  back  the  Celts  into  the  west  and  north,  these 
conquested  parts  lapsed  again  into  heathenism  and  broke 
off  all  connection  with  the  civilized  world  either  political 
or  religious.  During  the  entire  sixth  century  Britain  was 
as  completely  out  of  the  world  as  it  had  been  before  it 
was  occupied  by  the  Roman  Empire. 


THE  EFFORT  OF  EUROPE  119 

The  conversion  of  the  Anglo-Saxons  began  in  Kent  and 
proceeded  chiefly  from  Kent  to  the  other  Kingdoms. 
Naturally,  the  capital,  so  to  speak,  of  the  English  Church 
was  laid  in  Kent.  The  conversion  proceeded  peaceably 
and  gradually,  beginning  with  the  Kings  and  those  in  high- 
est station  and  advancing  through  all  classes  of  the  society. 
The  Christian  religion  was  not  forced  upon  any  one  in 
England.  It  won  its  way  by  persuasion,  influence,  and 
example,  but  the  conversion  was  all  the  more  complete, 
universal,  and  abiding  for  that.  Its  progress  occupied  al- 
most the  entire  century  between  the  close  of  the  sixth  and 
that  of  the  seventh. 

At  the  end  of  the  seventh  century  the  Church  was  or- 
ganized in  hierarchic  form  throughout  the  seven  Kingdoms. 
It  exercised  all  of  the  functions  here  accorded  to  it  by  the 
Roman  Imperial  system.  It  looked  after  the  worship,  the 
morals,  the  education,  and  the  domestic  life  of  the  people. 
It  cared  for  the  sick,  the  infirm,  and  the  poor.  It  cultivated 
the  aesthetic  sense.  It  developed  the  sense  of  justice  and 
softened  the  antagonisms  between  the  different  classes  in 
the  society.  It  furnished  an  asylum  for  the  persecuted  and 
the  oppressed,  and  it  interceded  with  the  secular  powers  in 
behalf  of  the  weak  and  helpless.  In  England  as  elsewhere  it 
was  from  this  time  forward  the  organized  safeguard  of  Indi- 
vidual Liberty  against  despotic  and  arbitrary  Government. 

But  the  Church  as  hierarchically  organized,  at  the  end 
of  the  seventh  century,  did  still  more,  much  more,  for  the 
Anglo-Saxon  state.  It  made  the  English  nation.  It  made 
the  Kingdom  of  England  and  it  made  the  Cerdics  Kings 
of  England,  instead  of  Kings  of  Wessex.  In  the  diversity 
of  secular  Government  and  law,  it  was  the  Church  which 
possessed  unity  of  faith,  unity  of  morals,  unity  of  custom, 
and  unity  of  Government  throughout  the  seven  Kingdoms. 


120  GOVERNMENT  AND  LIBERTY 

The  Clergy  of  the  Church  throughout  the  seven  Kingdoms 
were  united  in  general  Synod  for  all  England  and  the  Arch- 
bishop of  Canterbury  was  the  Primate  of  the  Church  in  all 
the  Kingdoms.  It  was  above  all  things  the  teaching  and 
the  influence  of  the  Church  which  created  a  national  con- 
sensus of  opinion  and  a  popular  desire  for  national  unity 
in  England.  In  this  period  of  English  history  the  Church 
followed  a  national  unifying  policy  and  paved  the  way 
thereby  for  political  union  and  national  development. 

Moreover,  at  the  same  time  that  the  Church  defended 
the  Individual  against  the  arbitrary  power  of  the  Kings, 
it  gave  the  Kings  a  more  solid  basis  for  their  legitimate  au- 
thority and  power.  The  English  Church  of  this  period 
maintained  the  principle  of  rendering  to  Caesar  the  things 
which  rightfully  belonged  to  Caesar.  It  gave  its  consecra- 
tion to  the  Royal  power.  It  made  the  obedience  of  the 
subject  to  the  King  and  his  loyalty  to  the  King  a  religious 
duty,  always,  of  course,  under  those  limitations  fixed  by 
the  Church  in  behalf  of  Individual  Liberty  and  worth. 
And,  lastly,  it  was  the  Church  again  which  brought  the 
Anglo-Saxon  state  into  the  orbit  of  the  civilized  world. 

It  would  be  difficult  indeed  for  us  of  the  present  day, 
with  our  modern  way  of  thinking,  to  sufficiently  appreciate 
what  all  this  meant  for  England  and  the  development  of 
the  English  nation.  We  are  all  the  time  thinking  of  the 
state  as  the  broader,  more  national  organization  of  the 
people  and  of  the  Church  as  only  one  of  the  many  insti- 
tutions embraced  in  it,  whereas  the  English  Church  of  the 
seventh  century  was  the  one  national  organization  of  the 
people  on  English  soil  and  the  Kingly  Governments,  sep- 
arate, based  on  family  right  and  the  choice  of  the  Witen, 
the  majority  of  whom  in  every  case  were  the  King's  own 
Theyns,  rested  upon  a  far  narrower  foundation. 


THE  EFFORT  OF  EUROPE  121 

These  things  are,  however,  somewhat  aside  from  the 
purposes  of  this  study.  It  is  the  Church  as  the  defender 
of  the  Liberty  of  the  Individual  against  the  despotic  and 
arbitrary  encroachments  of  the  Royal  Governments  in  the 
England  of  the  seventh,  eighth,  and  ninth  centuries  which 
interests  us.  Of  this  the  Church  was,  at  the  outset,  the 
sturdy  and  practically  sufficient  defender.  But,  alas,  it 
did  not  remain  such.  It  soon  became  mixed  and  mingled 
with  the  secular  Government  in  the  same  way  as,  at  the 
same  period,  upon  the  European  Continent.  The  Church 
became  a  corporation  holding  vast  landed  estates  and  gov- 
erning locally  the  peasantry  which  worked  them.  The 
Bishop  sat  with  the  Earldorman  in  the  shire-moot  and  par- 
ticipated in  the  judicial  administration  of  the  shire.  The 
Bishops  of  the  Kingdoms  sat  also  in  the  Witenagemot  as 
the  King's  Counsellors  in  secular  as  well  as  spiritual  affairs 
and  participated  in  the  choice  of  the  Earldormen,  the 
Bishops,  and  the  King  himself.  We  have  historical  record 
that  they  acted  sometimes  as  Chieftains  of  the  armed  hosts 
in  war.  The  Church  ceased  thus  very  soon  to  be  an  or- 
ganization separate  from,  and  independent  of,  the  Govern- 
ment, whose  interests  would  lay  with  the  subject  rather 
than  with  the  Government  and  whose  great  political  duty 
would  be  felt  by  it  to  be  the  protection  of  the  subject  against 
the  despotism  and  arbitrariness  of  Government,  and  be- 
came a  quasi-governmental  institution  having  its  own  sub- 
jects as  well  as  votaries  and  having  in  many  respects  com- 
mon interests  with  the  Royal  Government. 

With  this  the  Anglo-Saxon  state  swung  back  into  the 
position  of  a  benevolent  despotism  in  principle.  In  prac- 
tise, the  participation  of  the  Earldormen,  Bishops,  Royal 
Theyns,  and  larger  landholders  in  the  Assemblies  and  the 
possible  participation  of  all  freemen  therein  served  to  limit, 


122  GOVERNMENT  AND  LIBERTY 

in  some  degree,  the  power  of  the  King,  especially  over  the 
members  of  the  higher  classes  in  the  society.  It  did  not, 
however,  always  serve  to  limit  the  despotism  of  the  Govern- 
ment as  a  whole.  It  could  never  do  so,  when  the  Govern- 
ment as  a  whole  was  disposed  to  exercise  despotic  power, 
and  this,  with  some  notable  interruptions,  has  been  the 
nature  of  the  much-vaunted  English  Liberty  to  this  day. 

After  the  union  of  the  seven  Kingdoms  under  the  rule 
of  the  house  of  Wessex,  King  Alfred,  who  was  a  statesman 
of  the  order  of  Charlemagne,  and  who  had,  undoubtedly, 
an  extensive  knowledge  of  the  Carolingian  Constitution, 
conceived  a  system  for  England  quite  similar  to  that  in- 
vented or  developed  by  the  Great  Caroling.  King  Alfred 
evidently  regarded  his  sovereign  authority  as  the  basis  of 
the  Individual  Liberty  of  his  subjects  as  well  as  of  his 
Government  over  them.  It  was  in  this  conception  rather 
than  in  anything  and  everything  else  that  his  superior 
statesmanship  manifested  itself.  At  the  same  time  that 
he  perfected  his  governmental  arrangements,  he  adopted 
the  institution  of  the  Carolingian  Missi,  under  the  name  of 
Fideles,  for  England  and  vested  in  these  circuit  Judges,  so  to 
speak,  consisting  of  both  laymen  and  churchmen,  the  power 
and  imposed  upon  them  the  duty  of  protecting  the  consti- 
tutional or  customary  Liberty  of  the  Individual  against 
the  arbitrary  power  of  the  governmental  Officials.  Exactly 
how  far  their  power  extended  is  difficult  to  tell.  It  seems, 
however,  that  they  could  nullify  everything  short  of  the 
King's  edicts  issuing  from  the  Witenagemot  and  his  express 
administrative  commands.  Here  was,  however,  the  weak 
spot.  A  King  like  Alfred  might  distinguish  between  his 
power  as  Sovereign  and  his  power  as  Government  and  de- 
fend the  Liberty  of  the  Individual  against  the  latter  while 
holding  it  subject  to  the  former,  but  the  ordinary  Monarch 


THE  EFFORT  OF  EUROPE  123 

could  or  would  never  do  any  such  thing.  In  such  a  con- 
nection the  Government  of  the  ordinary  monarch  will 
always  become,  both  in  principle  and  practise,  despotic. 
Naturally,  this  system  of  the  Fideles  disappeared  with  the 
Great  King  who  adopted  it. 

The  Danish  invasions  which  began  before  the  reign  of 
Alfred,  that  is  before  the  last  quarter  of  the  ninth  century, 
and  extended  through  the  tenth,  ending  with  the  temporary 
conquest  of  all  England  by  the  Danes  and  the  temporary 
reign  of  the  Danish  Royal  House,  did  not  alter  materially 
the  constitutional  situation  in  regard  to  the  subject  we  are 
considering.  The  Danes  were  so  akin  to  the  Jutes,  Angles, 
and  Saxons  in  race  and  civilization  that  they  readily  adopted 
the  Anglo-Saxon  institutions  and  customs  in  England,  even 
embracing  the  Christian  religion  and  acknowledging  and 
protecting  the  English  Church  with  its  existing  organiza- 
tion. 

The  two  chief  results  of  the  Danish  invasions  and  the 
short  reign  of  the  Danish  Royal  House  were,  first,  the  in- 
crease of  the  personal  following  of  the  King.  In  resisting 
the  Danish  incursions  the  house  of  Wessex,  the  Cerdics, 
found  their  opportunity  for  expanding  Wessex  until  it  be- 
came England.  The  smaller  Kingdoms  of  Kent,  Essex, 
Sussex,  and  East  Anglia  were  unable  to  defend  themselves 
and  were  obliged  to  lean  upon  Wessex,  with  all  which  that 
implies.  Moreover,  the  Danes  were,  at  the  outset  of  the 
invasion,  still  heathen,  and  the  Church  throughout  these 
weaker  Kingdoms  in  the  East  looked  to  Wessex  for  protec- 
tion. As  Wessex  grew  thus  into  England  through  military 
and  ecclesiastical  causes,  the  Kingship  of  Wessex  grew 
stronger  and  more  stable  as  well  as  more  universal.  The 
body  of  King's  Theyns  grew  immensely,  this  body  of  im- 
portant men  attached  to  the  King  by  personal  ties  and 


i24  GOVERNMENT  AND  LIBERTY 

pledged  to  him  in  superior  loyalty.  In  other  words,  the 
relation  of  Lord  and  Vassal  supplanted  that  of  Sovereign 
and  Subject  in  regard  to  an  important  part  of  the  member- 
ship of  the  state.  This  fact  is  connected  with  the  topic 
of  this  treatise  in  that  the  Theyns  were  members,  and  ever- 
present  members,  of  the  Witenagemot  and  majorized  the 
other,  only  a  little  more  independent,  elements  therein. 
The  protection  of  Individual  Liberty  through  the  partici- 
pation of  the  subject  in  the  Government,  through  S elf- 
Government,  became  thus  entirely  lost,  as  the  decrees  of 
the  Witenagemot,  voted  by  the  Theyns,  were,  virtually, 
the  decrees  of  the  King  himself.  This  had,  however,  sub- 
stantially happened  before  the  Danish  invasion  began. 

The  second  result  of  the  Danish  supremacy  was  purely 
administrative.  The  Danish  Kings  divided  England  into 
four  great  Earldoms,  East  Anglia,  Wessex,  Mercia,  and 
Northumberland,  and  placed  an  Earl  or  a  sort  of  Viceroy 
over  each,  that  is,  they  interposed  a  set  of  administrative 
Officials  between  the  Earldormen  of  the  shires  and  the  King. 
The  effect  of  this  was  rather  to  weaken  the  Kingship  by  the 
creation  of  such  powerful  local  rulers  over  such  large  terri- 
tories and  populations,  and  to  train  up  personalities,  who 
might  become  candidates,  so  to  speak,  for  the  Royal  office. 
It  will  be  remembered  that  Godwin,  King  Harold's  father, 
was  the  Earl  of  Wessex,  but  was  not  of  the  house  of  Cerdic. 
The  restoration  of  the  Wessex  house  in  1041  brought  no 
change  in  the  Constitution  concerning  our  subject  of  dis- 
cussion; but  the  transfer  of  the  Royal  power  from  West- 
Saxon  to  Dane,  and  from  Dane  to  West-Saxon,  and  from 
the  Cerdics  to  the  Godwins,  had  demoralized  the  Royal 
tenure  and  opened  the  way  for  the  Norman  Conquest. 

Anglo-Saxon  Liberty  is  thus  seen  to  signify  political 
rather  than  civil  Liberty,  the  joint  liberty,  so  to  speak,  of 


THE  EFFORT  OF  EUROPE  125 

the  subjects  of  Government  to  participate  in  the  operations 
of  Government,  rather  than  a  sphere  of  Individual  Im- 
munity from  Government,  protected  by  an  organized 
power.  The  Government  as  a  whole  was  unlimited  and 
the  Immunity  of  the  Individual  from  governmental  power 
in  any  respect  depended  simply  upon  the  benevolent  dis- 
position of  the  Government  itself,  and  not  upon  a  sovereign 
power  back  of  the  Government  placing  limits  upon  the 
powers  of  the  Government  and  furnishing  the  means  for 
their  enforcement.  This  is  certainly  a  rude  and  unsatis- 
factory solution  of  our  problem,  if  indeed,  any  solution  at 
all.  We  must  look  further,  much  further,  for  that  solution 
both  in  English  history  as  well  as  elsewhere  in  Europe  and 
perhaps  we  shall  not  find  it  there  at  all. 


CHAPTER  VII 

THE   MIDDLE   AGES 

IT  is  very  difficult,  not  to  say  impossible,  to  give  a  dis- 
tinct date  to  the  beginning  or  the  end  of  the  Middle  Ages, 
nor  is  it  for  the  purposes  of  this  study  necessary.     We  are 
dealing  with  institutions   rather   than   with   chronology. 
.   From  this  point  of  view,  we  may  define  the  Middle  Ages 
as  that  period  in  the  development  of  the  civilization  of 
Europe,  when  the  Feudal  System  and  the  Roman  Church 
(^dominated  the  Monarchy  and  the  people,  and  when  the 
method  of  thought  in  every  direction  was  theological.    All 
the  terms  of  this  definition  require  considerable  explanation. 

First,  what  was  the  Feudal  System? 

What  it  was  can  be  best  understood  by  a  brief  historical 
survey  of  its  origin  and  growth.  It  must  be  always  kept 
in  mind  that  the  Roman  Empire  was  a  vast  union  of  cities, 
originally  independent  of  each  other  and  sovereign  and  then 
reduced  by  the  Constitution  of  the  Empire  to  the  position 
of  local  administrative  bodies,  municipalities,  the  Imperial 
Governments  having  assumed  the  sovereignty  and  the  po- 
litical power  for  the  whole.  It  must  be  likewise  kept  in 
mind  that  the  old  Germanic  state  was  rural,  agricultural,  and 
pastoral  and  that  no  cities  existed  among  the  ancient  Ger- 
mans, and  lastly,  it  must  be  kept  in  mind  that  when  the 
Germanic  tribes  overran  the  Romanic  lands,  they  brought 
with  them  their  aversion  to  city  life  and  that  when  they 
settled  down  territorially,  they  did  so  outside  of  the  limits 
of  the  towns  upon  the  open  country  and  returned  to  agri- 
cultural life. 

126 


THE  EFFORT  OF  EUROPE       127 

A  vast  quantity  of  the  land  of  the  Roman  provinces  had 
never  been  reduced  to  cultivation  or  even  to  private  own- 
ership. It  was  Imperial  domain.  The  German  tribes  oc- 
cupied it  and  it  was,  as  we  have  seen,  parcelled  out  among 
the  Chiefs  and  their  followers.  The  tenure  of  such  land 
was  what  we  call  allodial.  It  was  even  a  freer  tenure  than 
our  allodial  tenure,  since  no  relation  whatsoever  to  the 
state  or  its  head  was  established  by  it.  It  was  this  kind  of 
tenure  which  exhausted  the  domain  of  the  Merwings  and 
led  to  their  impoverishment  and  downfall.  The  Carolings 
profited  by  this  experience.  When  they  gave  land  out  of 
the  Royal  domain  they  required  some  kind  of  continuous 
service  for  it  and  limited  the  time  of  holding  it  to  the  life- 
time of  the  immediate  recipient.  The  Bishops  of  the 
Church  and  the  large  landholders  had  already  set  the  ex- 
ample for  this  in  the  granting  of  benefices,  as  it  was  called, 
or  the  leasing  of  land.  As  the  Royal  power  grew  weaker, 
the  Bishops  and  the  large  secular  Landlords  were  able  to 
induce  a  larger  and  larger  proportion  of  the  smaller  land- 
holders to  accept  their  protection  and  pay  for  the  same  by 
giving  up  the  fee  of  their  lands,  as  we  would  say,  but  re- 
taining the  possession  and  use  of  them,  rendering  some 
service  or  tribute,  great  or  small,  in  recognition  of  the 
Lord's  ownership.  The  possessors  of  such  lands,  having 
been  the  original  owners  in  full,  claimed  the  rifffct  of  trans- 
mitting this  possession  to  their  heirs,  and  this  right  was 
acknowledged  by  the  Lords  from  the  first.  Step  by  step 
all  the  land  in  a  locality  was  brought  into  this  relation  to 
the  chief  Landowner  in  the  locality,  and  all  Europe  was 
divided  up  territorially  into  these  large  landed  estates,  each 
the  property  of  some  secular  or  ecclesiastical  personage. 
The  estate  of  a  great  Landlord  consisted  thus  partly  of  land 
which  he  held  both  in  ownership  and  possession  and 


128  GOVERNMENT  AND  LIBERTY 

worked  by  his  own  peasants  and  slaves,  partly  of  land  which 
he  owned,  but  the  possession  of  which  was  held  for  life  by 
another  as  benefice,  and  partly  of  land  which  he  owned, 
but  the  possession  of  which  was  held  by  another  and  trans- 
missible to  his  heirs,  since  it  was  originally  owned  by  the 
beneficiary  and  transferred  by  him  to  the  Lord  in  order  to 
secure  protection  for  his  possession  and  use  of  it. 

Again,  estates  inland  were  connected  with  the  offices  of  the 
Crown  as  salary,  so  to  speak,  for  the  Officials.  The  Counts 
especially  were  compensated  in  this  way.  They  worked 
estates,  in  part  by  slaves  and  peasants  and  gave  them  out 
in  part  as  benefices,  receiving  certain  services  or  tribute 
in  return.  They  also  increased  their  estates  by  according 
special  protection  to  the  small  landowners  around  them 
and  obtaining  for  such  protection  the  fee,  as  we  would  say, 
of  these  lands,  the  original  owners  retaining  the  possession 
and  use  of  them,  and  paying  service  or  tribute,  generally 
of  a  light  nature.  The  lands  thus  acquired  by  the  Counts 
were  their  own  private  property  and  not  a  part  of  the  offi- 
cial estate  held  of  the  King  as  salary  of  office.  These  lands, 
however,  soon  exceeded  in  extent  the  official  estates  and 
the  Counts  finally  succeeded  in  making  not  only  their 
official  estates,  but  also  their  offices  hereditary,  that  is, 
succeeded  in  transforming  office  and  the  salary  of  office 
into  private  property.  With  such  official  and  property 
power  they  then  sought  to  impose  upon  all  the  other  Land- 
lords of  the  county  the  fiction  that  they  held  their  estates 
as  fiefs  of  the  Count  and  succeeded  in  doing  so  in  greater 
or  less  measure. 

Then  the  Dukes  and  Margraves,  where  such  existed, 
sought  to  bring  the  Counts  and  all  the  other  Landlords  not 
subject  to  the  Counts  into  the  relation  of  Under-Lords  of 
the  soil  to  them.  Finally  the  Kings  sought  to  establish 


THE  EFFORT  OF  EUROPE  129 

the  like  immediate  relation  between  themselves  and  the 
Dukes,  Margraves,  unmediatized  Counts,  and  independent 
Landlords.  The  success  in  both  of  these  cases  was  only 
partial  and  the  bond  of  connection  was  weak  and  attenu- 
ated. Gradually  but  surely  this  relation  of  Lords  of  the 
soil  and  Vassals,  mediated  chiefly  through  the  holding  of 
land  by  the  latter  from  the  former,  was  substituted  for  the 
older  relation  of  Sovereign  and  Subject. 

At  last  the  Lords  of  the  soil,  both  those  who  held  of 
greater  Lords  and  those  who  held  of  the  Kings,  claimed 
and  maintained  immunity  in  their  estates  against  the 
regular  Officials  of  the  Kings,  i.  e.,  they  claimed  what  was 
called  independent  Manorial  jurisdiction  over  the  inhabi- 
tants of  their  several  estates.  In  this  way  the  Royal 
official  administrative  divisions  were  broken  through  and 
destroyed  by  the  lines  of  the  Manorial  estates.  The  lines 
of  these  estates  became  now  the  local  governmental  bound- 
aries, and  these  Manorial  jurisdictions  became  more  than 
local  Governments  in  most  cases,  and,  in  some  cases,  be- 
came the  lines  of  general  Government  and,  practically,  of 
sovereignty. 

Such  was  the  result  of  the  first  attempt  to  organize 
Government  for  the  country  as  distinguished  from  the  city. 
Everywhere  rose  the  castles  and  strongholds,  inhabited  by 
the  Lords  of  the  soil  and  their  families,  domestic  servants, 
and  personal  attendants,  around  which,  usually  at  the  foot 
of  the  eminence  upon  which  the  castle  stood,  were  the  vil- 
lages of  peasants  and  serfs,  who  worked  the  lands  of  the 
Lord  not  given  in  fief  to  Vassals.  Farther  out  lay  these 
fiefs.  In  this  manner  the  soil  was  brought  under  cultiva- 
tion, the  cultivators  protected  and  governed,  and  the 
products  of  husbandry  secured  against  pillage  and  theft. 
Agriculture  grew  rapidly  to  be  the  predominating  factor 


130  GOVERNMENT  AND  LIBERTY 

in  the  economy  of  the  state,  and  the  Landlord  became  the 
chief  power  in  the  state. 

But  let  us  examine,  in  the  second  place,  the  effect  of  this 
development  upon  the  Monarchy.  Charlemagne  trans- 
mitted the  Monarchy,  intact  and  strong,  to  his  only  sur- 
viving son  Louis,  called  the  Pious,  in  814.  Eight  years 
before  his  death  he  had  bestowed  Kingdoms  on  his  three 
sons,  Charles,  Pippin,  and  Louis,  without  making  any  pro- 
vision about  the  succession  to  the  Imperial  office.  The 
death  of  Charles  and  Pippin  before  his  own  restored  the 
unity  of  the  entire  Empire  in  the  hands  of  Louis,  except 
Italy  where  Bernhard,  Pippin's  son,  had  by  permission  of 
Charlemagne  succeeded  his  father. 

From  the  first  day  of  the  reign  of  Louis  the  Pious  the 
relation  to  Bernhard  and  Italy  was  the  weak  spot  in  the 
new  Emperor-King's  administration.  Bernhard's  idea  was 
that  he  was  entirely  independent  of  Louis's  Government, 
while  Louis  rightly  conceived  that  as  Emperor  he  was 
Bernhard's  sovereign.  In  817  Louis  made  his  first  disposi- 
tion of  the  succession.  He  designated  his  eldest  son, 
Lothair,  as  his  successor  to  the  Imperial  office  and  as  imme- 
diate ruler  or  King  over  the  larger  part  of  the  Empire. 
He  gave  Aquitania  as  a  Kingdom  to  Pippin  and  Bavaria 
to  Louis,  leaving  Bernhard  in  Italy,  all  these  to  be  subject 
in  some  sense  to  the  Imperial  sovereignty  of  Lothair.  This 
was  a  statesmanlike  conception,  but  it  did  not  suit  the 
wishes  of  Pippin  or  Louis  or  Bernhard.  Moreover,  the 
Emperor  Louis  the  Pious  married  a  second  wife,  who  bore 
him  a  son  Charles,  named  the  Bald,  for  whom  the  Emperor 
modified  the  arrangement  of  817,  in  order  to  construct  an- 
other Kingdom,  over  which  Charles  should  reign.  This 
furnished  a  new  source  of  discord.  Insurrection  after  in- 
surrection against  the  Emperor  by  his  sons  hastened  his 


THE  EFFORT  OF  EUROPE  131 

death  in  840  and  led  to  the  overthrow  of  the  Imperial 
system  of  Charlemagne  altogether  and  to  the  division  of 
the  Empire  into  the  Kingdoms  of  West  Francia  or  France, 
East  Francia  or  Germany,  and  Italy.  This  was  consum- 
mated in  final  form  by  the  compact  of  Mersen  in  870,  be- 
tween Louis  the  German  King  of  East  Francia  and  Charles 
the  Bald,  King  of  West  Francia,  leaving  Louis  II,  son  of 
Lothair,  as  King  of  Italy. 

The  members  of  the  Carolingian  House  were  now  in 
constant  war  with  each  other  and  they  were  obliged  thus 
to  recruit  and  hold  large  bodies  of  armed  men  and  provide 
for  their  sustenance.  In  almost  all  cases  this  was  paid  for 
by  new  grants  of  lands  out  of  the  Royal  domains  in  fief,  or 
by  increasing  the  privileges  and  immunities  attached  to 
fiefs  already  granted. 

In  the  year  888  the  Carolingian  dynasty  became  extinct 
in  Italy,  in  911  in  East  Francia  or  Germany,  and  986  in 
West  Francia  or  France.  In  each  of  these  Kingdoms  the 
sovereignty  now  passed  to  the  aristocracy  of  the  great 
Feudatories,  and  the  immediate  problem  for  these  was 
now  whether  to  leave  the  thrones  unoccupied  and  them- 
selves govern  in  entire  independence,  each  in  his  own 
estate,  or  to  choose  a  new  King.  The  conditions  and  ideas 
of  the  time  favored  the  latter  course.  The  Saracen  inva- 
sions from  the  South,  the  Northmen  invasions  from  the 
North,  the  internal  strife  over  rights  and  possessions,  the 
necessity  of  having  a  logical  and  moral  basis  for  the  feudal 
properties,  powers,  immunities,  and  privileges,  all  pointed 
to  the  organization  of  the  great  Feudatories  and  their 
choice  of  a  new  representative  of  unity,  a  visible  basis  of 
title  and  authority. 

The  great  Feudatories  of  Italy  chose  Beringer,  Duke  of 
Friaul,  those  of  Germany  chose  Conrad,  Duke  of  Fran- 


i3 2  GOVERNMENT  AND  LIBERTY 

conia,  and  those  of  France  chose  Hugh  Capet,  Duke  of 
the  Isle  of  France.  Naturally  they  imposed  upon  the  new 
Kings  limitations,  the  chief  of  which  were  the  recognition 
of  the  hereditary  tenure  of  their  estates  and  offices  and  of 
their  local  governmental  powers  within  their  estates  and 
districts. 

The  new  Monarchy  was  now  distinct  from  the  old  in 
many  respects.  It  did  not  have  the  sovereignty;  that  was 
in  the  body  of  the  Feudatories.  The  form  of  state  was  now 
aristocratic.  The  new  Monarchy  was  indivisible.  It  was 
not  family  property.  It  was  clearly  office.  The  new  Mon- 
archy was  not  heritable.  The  incumbent  held  for  a  term, 
not  longer  than  his  own  life,  and  might  be  deposed  by  the 
body  which  chose  him.  Lastly,  the  new  Monarchy  was 
strictly  limited  and  moved  within  narrow  bounds.  The 
new  King  was  thus  the  territorial  Lord-in- Chief  of  a  body 
of  Feudatories,  related  to  them  not  as  Sovereign  to  Subject, 
but  as  Lord  to  Vassal,  the  terms  of  the  relation  being  de- 
fined by  the  compact  or  contract  in  the  grant  of  the  fief 
on  condition  of  service  or  tribute,  or  both,  and  by  the  so- 
called  Electoral  Capitulation  imposed  by  the  body  of  Feuda- 
tories at  the  coronation,  and  he  was  cut  off  by  the  Feuda- 
tories from  any  direct  relation  to  the  great  mass  of  the 
population  who  lived  as  sub  vassals,  serfs,  or  slaves  to  them. 
The  powers  of  the  King  were  reduced  thus  to  a  minimum, 
and  the  Liberty  of  the  Feudatories  was  expanded  to  a 
maximum.  It  was  so  excessive  as  to  threaten  anarchy 
all  along  the  line,  while  the  great  mass  of  the  population 
were  subject  to  the  unlimited  Government  over  them  of 
the  Lords  of  the  soil. 

The  King,  it  is  true,  also  held  vast  estates  worked  by 
serfs  and  slaves,  and  here  he  governed  without  limitations, 
while  outside  of  these  districts  his  Government  was  almost 


THE  EFFORT  OF  EUROPE  133 

non-existent.  His  Counts  and  other  Officials  had  become 
Feudal  Lords,  holding  their  offices  as  well  as  the  estates  at- 
tached to  them  as  family  property,  to  be  transmitted  to 
their  heirs.  They  felt  their  interests  to  be  with  the  Feuda- 
tories rather  than  with  the  King. 

In  England  feudalism  did  not  reach  the  excess  of  political 
decentralization  attained  on  the  Continent.  The  Duke  of 
Normandy,  one  of  the  strongest  and  most  defiant  Vassals 
of  the  King  of  France,  had  been  eye-witness  to,  and  par- 
ticipant in,  the  weakening  of  the  Monarchy  in  France  and 
elsewhere  on  the  Continent  and  when  in  1067  he  became 
King  of  England  he  imposed  such  modifications  upon  the 
system  as  would  safeguard  the  Crown  against  this  fate. 
It  cannot  be  said  that  Duke  William  introduced  the  Feudal 
System  into  England.  As  we  have  seen,  it  had  made  a 
very  considerable  development  under  the  Anglo-Saxon 
Kings,  and  was  in  Anglo-Saxon  England  of  the  same  threat- 
ening character  to  the  Monarchy  as  upon  the  Continent. 
Duke  William  or  King  William,  by  assuming  all  the  folk- 
land  of  England  as  King's  land,  as  well  as  the  estates  of 
the  Anglo-Saxon  Kings,  and  by  confiscating  the  estates  of 
all  of  the  Anglo-Saxon  Lords  who  had  opposed  his  claim  to 
the  Crown  of  England,  held  as  immediate  Landlord  about 
all  the  land  of  England,  except  what  was  in  the  hands  of 
the  Church.  He  then  bestowed  this  land  as  fief  upon  his 
Norman  followers  chiefly,  permitting  them,  it  is  true,  to 
subinfeudate  their  estates,  but  requiring  of  every  sub- 
Vassal,  as  well  as  of  every  immediate  Vassal,  the  oath  of 
primary  loyalty  to  himself.  Finally,  he  maintained,  as 
Sovereign  over  Subjects,  as  King  in  the  original  sense,  an 
official  system  separate  from,  and  independent  of,  the 
Feudatories,  the  County  Sheriff  system,  and  broke  up  the 
great  Earldoms  of  the  Anglo-Saxon  period  into  Counties. 


i34  GOVERNMENT  AND  LIBERTY 

He  was  thus  immediate  Feudal  Lord  of  the  most  of  Eng- 
land and  thereto  exercised  the  Royal  powers  of  Sovereign 
over  Subject.  This  maintained  the  unity  of  England  dur- 
ing the  Feudal  period,  while  anarchy,  or  something  very 
like  it,  prevailed  on  the  Continent.  When  the  Barons  of 
England  successfully  defied  their  King  under  the  reign  of 
the  weak  John,  they  did  so  as  a  united  organized  body, 
claiming  to  represent  the  whole  body  of  subjects,  and  the 
Charter  which  they  extorted  from  him  was  for  the  benefit 
of  all  freemen  in  England.  They  also  selected  a  Standing 
Committee  of  the  strongest  and  most  intelligent  among 
themselves  and  vested  it  with  the  power  and  imposed 
upon  it  the  duty  of  holding  the  King  to  his  promises.  So 
long  as  this  Committee  remained  extra-governmental,  Eng- 
land had  a  constitutional  guarantee  of  Individual  Liberty; 
when,  however,  the  Lords  assumed  the  legislative  power  of 
Government,  the  Individual  had  nowhere  any  guarantee 
against  the  whole  Government  in  the  enjoyment  of  that 
Liberty. 

In  order  to  complete  the  picture  of  the  Middle  Ages, 
however,  we  must  now  follow  the  ecclesiastical  develop- 
ment from  the  death  of  Charlemagne  to  the  completion  of 
the  Papal  system  of  the  Church. 

As  we  have  seen,  the  Church  in  the  time  of  the  Great 
Emperor  had  reached  the  condition  of  complete  hierarchic 
organization  under  the  headship  of  the  Bishop-Patriarch 
of  Rome.  Even  before  the  downfall  of  the  West  Roman 
Empire,  the  laymen  had  lost  their  early  right  of  participa- 
tion in  the  choice  of  the  Clergy,  and  the  Clergy  had  become 
a  separate  and  independent  body,  cooptating  themselves, 
educating  themselves,  and  investing  themselves  with  office 
and  power,  the  lower  Clergy  electing  the  Bishops  and  the 
Bishops  appointing  the  lower  Clergy. 


THE  EFFORT  OF  EUROPE  135 

When  the  Barbarians  overran  the  Empire  they  found  the 
Church,  thus,  so  compactly  and  independently  organized 
that  the  destruction  of  the  Empire  did  not  involve  the  de- 
struction of  the  Church  as  one  of  its  institutions.  More 
than  that,  the  Church  was  prepared,  under  its  independent 
hierarchic  organization,  to  bring  the  Barbarians,  through 
the  form  of  conversion  at  least,  under  its  great  moral  and 
disciplinary  power  and  influence.  In  the  centuries  after 
the  fifth,  the  world-historic  meaning  of  the  change  from 
the  democratic  Church  of  the  Apostolic  era  to  the  hierarchic 
Church  of  the  fifth  century  became  manifest.  Under  the 
original  form  of  organization  the  Church  could  never  have 
done  its  great  work  in  subduing  and  disciplining  morally 
the  Barbarians.  On  the  other  hand,  they  would  have 
ruthlessly  trampled  it  underfoot.  In  the  fierce  struggle 
with  the  paganism  of  the  Teutons  nothing  but  its  indepen- 
dent hierarchic  organization  could  have  brought  it  victori- 
ously through,  and  after  it  had  triumphed  over  Teutonic 
paganism  nothing  short  of  this  organization  could  have 
preserved  the  Church  against  the  Arianism  of  the  new  con- 
verts. However  much  we  may  deplore  the  loss  of  the  orig- 
inal democratic  organization  of  the  Christian  Church  and 
the  participation  of  the  layman  in  its  Government,  still  we 
must  say  that  the  change  was  historically  justified.  So 
far  as  mortal  eye  can  see  Christianity  would  have  gone 
down  with  the  Roman  Empire  except  for  the  compact, 
hierarchic,  independent  organization  effected  chiefly  by 
Bishop  Cyprian  in  the  third  century  of  its  existence.  We 
are  also  obliged  to  admit  that  the  demoralization  of  the 
Church  under  its  Episcopal  organization  in  the  Mero- 
vingian Kingdom,  when  the  Frankish  Bishops  became  al- 
most indistinguishable  from  the  Lay-Lords  of  the  Manors, 
justified,  yes  required,  the  creation  of  the  Archiepiscopal  or- 


136  GOVERNMENT  AND  LIBERTY 

ganization  and  the  Monastic  orders,  chiefly  the  Benedictine 
order,  under  the  control  of  the  Bishop  of  Rome,  in  order 
to  re-establish  a  stronger  unity  in  the  Church  and  purify 
the  Clergy  of  their  worldly  character  and  practises.  As  we 
know,  the  Carolingian  Kings  and  the  great  Emperor  him- 
self approved  all  this  as  in  the  interest  of  general  civiliza- 
tion and  we  Protestants  only  show  our  misunderstanding 
of  the  necessities  of  the  time  when  we  condemn  it.  We 
know,  still  further,  that  the  Bishop  of  Rome  and  his 
Archbishops  and  Monastics  were  the  chief  power  in  setting 
the  Carolings  upon  the  Prankish  throne  and  upon  the 
throne  of  the  Holy  Roman  Empire,  and  that  it  was  the  Caro- 
lings themselves  who  created  the  temporal  power  of  the 
Bishop  over  the  Exarchate  of  Ravenna,  the  so-called  States 
of  the  Church. 

It  cannot  be  said  that  during  the  lifetime  of  Charlemagne 
the  Bishop  of  Rome  was  the  Sovereign  of  the  Exarchate. 
The  Emperor  considered  himself  alone  the  Sovereign  there 
as  elsewhere  in  the  Empire.  The  Emperor  looked  upon 
the  States  of  the  Church  as  he  did  upon  the  Dukedom  of 
Benevent,  as  a  sort  of  local  Government  within  his  sover- 
eignty, or  as  a  fief  of  the  Empire,  but  never  as  an  inde- 
pendent state.  I  do  not  think  it  could  be  said  that  the 
Bishop  of  Rome  himself,  at  that  time,  claimed  that  he  was 
independent  of  the  sovereignty  of  the  Emperor.  The 
Bishop  of  Rome  followed  an  Imperial  policy  during  the 
reign  of  Charlemagne,  not  a  states'-rights  policy,  as  we  would 
say.  He  continued  to  follow  this  Imperial  policy  during  the 
reign  of  Louis  the  Pious  and  also  in  the  reign  of  Lothair  I, 
until  Lothair  himself  showed  himself  untrue  to  the  Church 
by  promising  the  Saxons  to  allow  them  to  restore  their 
ancient  heathenism.  Then  the  Roman  See  and  the  entire 
Clergy  turned  against  Lothair  and  the  Empire  and  em- 


THE  EFFORT  OF  EUROPE  137 

braced  that  states'-rights  policy  which  characterized  the 
Church  throughout  the  entire  Middle  Ages. 

It  must  be  always  understood  that  this  states'-rights 
policy  applied  only  to  the  secular  Government.  The 
Church  itself  became  in  its  own  organization  imperialistic. 
The  Church  undertook  to  supplant  the  Empire  as  represent- 
ing the  unity  of  Europe.  The  Church  organization  passed, 
after  the  downfall  of  the  Carolingian  Empire,  into  the  stage 
of  the  Papacy  of  Rome.  Nor  was  this  less  a  necessity  of 
the  times  than  was  the  independent  hierarchic  organization 
of  the  preceding  period.  It  was  necessary  to  civilization 
to  preserve  the  unity  of  Europe,  especially  of  Christian 
Europe.  The  secular  power  had  shown  itself  incapable 
of  doing  it.  The  Church  must  do  it,  if  it  was  to  be  done 
at  all.  It  was  also  necessary  that  the  head  of  the  Church 
should  be  exempt  from  the  sovereignty  of  any  barbaric 
secular  Prince,  such  as  Lothair  or  any  of  the  whole  race  of 
them.  In  a  word,  the  Papacy  of  850  was,  under  the  condi- 
tions of  the  age,  a  logical  result,  a  necessity  of  history,  a 
great  step  forward  in  civilization.  Bad  as  the  Popes,  the 
Bishops,  and  the  Clergy  often  were,  they  were  far  better 
than  the  Barbaric  Chiefs  who  passed  as  the  state,  engaged 
always  in  war,  murder,  pillage,  robbery,  rape,  and  de- 
bauchery. In  spite  of  its  hierarchic  organization,  the 
Church  represented  the  people  in  a  far  truer  sense  than  the 
secular  Government  did.  The  Clergy  were  recruited  from 
all  classes  in  the  society  and  the  lower  Clergy  were  almost 
always  of  the  people  and  were  participant  in  the  feelings, 
grievances,  aspirations,  and  hopes  of  the  people.  The  in- 
telligence, morality,  and  character  of  Europe  were  in  the 
Church.  The  secular  Government  was  brute  force  exer- 
cised by  a  mere  handful  of  reckless  men  banded  together 
for  war  and  plunder.  Civilization  required,  therefore,  that, 


138  GOVERNMENT  AND  LIBERTY 

in  this  period  of  human  development,  the  Church  should 
control  secular  Government  and  restrain  it  in  behalf  of 
peace,  unity,  justice,  and  Individual  Liberty. 

The  first  real  open  contest  between  the  Church  and  the 
secular  Government — I  will  not  call  it  the  state — for  the 
supremacy  was  the  celebrated  divorce  case  of  Lothair  II, 
son  of  the  Emperor  Lothair,  and  King  of  Lorraine.  This 
brutal,  shameless  Prince  brought  false  accusations  against 
his  faithful  wife,  Teutberga,  in  order  to  drive  her  from  him 
that  he  might  take  a  doubtful  character,  one  Waldrada,  to 
be  his  Queen.  He  first  imposed  the  heathen  ordeal  of 
boiling  water  upon  her,  through  which  her  representative 
came  unharmed.  He  then  called  a  Synod  of  the  Clergy 
of  Lorraine,  and  induced  them  to  pronounce  Teutberga 
guilty  and  annul  his  marriage  to  her.  Another  Synod  of 
the  same  Clergy  was  induced  to  give  consent  to  his  taking 
Waldrada.  This  happened  in  the  year  862.  Teutberga 
appealed  her  case  to  the  Bishop  of  Rome,  Nicholas  I,  against 
both  the  King  and  the  Lorraine  Synod.  The  Bishop  sent 
two  Legates  to  examine  into  the  merits  of  the  case.  They 
were  bribed  by  the  King  to  report  in  his  favor.  Nicholas 
was  not,  however,  deceived.  He  assumed  jurisdiction  over 
both  the  Lorraine  Synod  and  the  King,  nullified  the  decrees 
of  the  Synod,  and  forced  the  King  to  put  away  Waldrada 
and  recognize  Teutberga  as  his  legitimate  wife  and  Queen. 
Had  Nicholas  lived  he  would  doubtless  have  deposed  the 
King,  but  his  death  in  864  left  the  matter  in  the  hands  of 
his  successor,  Adrian  II,  who  did  not  possess  the  indomitable 
will  of  Nicholas  and  who  was  made  subject  to  pressure  by 
Teutberga  herself,  who  now  asked  for  the  divorce  in  order 
to  be  free  from  the  persecutions  of  the  King.  Adrian 
would  not,  however,  grant  it.  He  maintained  the  juris- 
diction of  the  Pope — we  will  hereafter  term  the  Bishop 


THE  EFFORT  OF  EUROPE  139 

Pope,  since  his  now  established  jurisdiction  over  the  Kings 
added  the  final  element  to  the  Papal  idea — in  matters  of 
divorce  over  the  Kings,  although  he  did  not  undertake  to 
depose  the  recalcitrant  King.  The  death  of  the  King  in 
869  put  an  end  to  the  controversy.  The  Papal  power  was 
now  complete.  It  included  the  headship  of  the  entire 
orthodox  Christian  Church,  the  sovereignty  over  the  States 
of  the  Church,  and  jurisdiction  over  the  secular  Rulers  in 
all  matters  of  a  religious  or  moral  nature. 

The  threatening  anarchy  in  Italy,  during  the  first  half 
of  the  tenth  century,  drove  the  Popes  over  again  to  the 
plan  of  the  Saxon  Kings  of  Germany  for  restoring  the 
Empire  over  Germany  and  Italy  and  in  962  King  Otto  I 
received  the  Imperial  Crown  at  the  hands  of  Pope  John 
XII,  establishing  thus  the  Holy  Roman  Empire  of  the 
German  Nation,  which  existed  under  varying  fortunes 
down  almost  to  within  the  memory  of  some  who  live  to-day, 
down  to  1806. 

Under  the  imperial  reign  of  Otto  I,  Otto  II,  Otto  III, 
and  Henry  II,  i.  e.,  from  962  to  1024,  the  Popes,  the  Eccle- 
siastics generally,  and  the  Emperors  worked  together  with 
good  understanding  and  good-will  for  the  advancement  of 
civilization. 

The  canker  in  the  body  of  the  Church  had  been  the  con- 
ferring of  the  episcopal  office  upon  lay  Vassals  by  the 
Kings  and  the  rendering  of  service  or  tribute  by  these 
Vassals  to  the  Kings  for  their  possession  of  the  Church 
properties,  i.  e.,  simony.  Under  these  four  Emperors  this 
practise,  while  not  entirely  discontinued,  was  largely  mini- 
mized. Under  the  Emperor  Conrad  II,  elected  German 
King  in  1024  and  crowned  by  the  Pope  as  Emperor  in 
1026,  the  old  practise  was  again  resumed  and  simony  be- 
came again  a  deadly  disease  in  the  Church.  Conrad's 


140  GOVERNMENT  AND  LIBERTY 

son,  Henry  III,  who  succeeded  his  father  to  the  German 
Kingship  in  1039,  reversed  again  the  policy  of  his  father  in 
regard  to  this  burning  question  and  showed  himself  so 
conscientiously  zealous  in  the  reform  of  the  Papacy  and  the 
whole  Church  that  the  Romans  in  1046  conferred  on  him 
as  Emperor  the  right  to  appoint  the  Pope.  This  was  cer- 
tainly a  great  mistake  and  it  is  probable  that  this  incon- 
siderate act  on  the  part  of  the  Romans  excited  in  the  mind 
of  the  great  Papal  secretary,  Hildebrand,  the  idea  of  free- 
ing the  choice  of  the  Papacy  both  from  the  Romans  and 
the  Emperor.  Certain  it  is  that  he  must  have  revolved 
this  idea  in  his  mind  about  as  early  as  this,  for  it  was  only 
about  twelve  years  later  that  he  brought  forth  his  propo- 
sition in  the  Lateran  Council  of  1059,  and  it  must  have 
taken  as  long  as  this,  in  the  slow  methods  of  communica- 
tion then  practised,  to  have  matured  this  plan  and  have 
secured  the  necessary  adoption  of  it  by  minds  so  far  apart 
geographically. 

This  plan,  there  and  then  adopted  as  the  fundamental 
law  of  the  Church,  provided  for  the  election  of  the  Pope 
by  the  Cardinal  or  principal  Bishops,  Presbyters,  and  Dea- 
cons of  the  larger  Diocese  or  perhaps  the  Archdiocese  of 
Rome.  At  first  something  was  contained  in  the  law  of 
Papal  election  about  confirmation  by  the  Emperor  but  this 
was  soon  omitted  and  the  proposition  of  Hildebrand  stood 
forth  stripped  of  all  limitations  and  ambiguity.  It  was 
simply  that  the  election  of  the  Pope  should  be  an  internal 
Church  affair,  freed  from  any  interference  by  either  Em- 
peror or  the  lay  citizens  of  Rome.  The  plans  of  Hilde- 
brand went  still  further  than  this.  He  would  free  not 
only  the  Pope  from  the  power  of  the  Government  in  his 
choice  and  in  the  administration  of  his  office  but  all  the 
Bishops  and  Church  officials,  and  would  divorce  all  these 


THE  EFFORT  OF  EUROPE  141 

officials  from  the  lay  society  by  the  rule  of  celibacy.  It  is 
not  my  purpose  to  relate  the  history  of  the  struggle  with 
the  secular  power  to  secure  these  ends.  The  point  of  im- 
portance in  connection  with  our  subject  is  the  appreciation 
of  the  necessity  of  just  these  reforms  in  the  Church  in  order 
to  enable  it  to  become  a  real  protector  of  Individual  Liberty 
against  the  despotism  of  secular  Government.  It  was  just 
the  appointment  of  Church  officials  by  Emperor,  Kings, 
and  Lay-Lords  and  their  investiture  with  property  by  the 
secular  powers  which  had  led  to  the  secularization  and 
corruption  of  the  Church  and  had  made  of  it  an  institu- 
tion more  interested  in  tyrannizing  over  the  Individual  than 
in  protecting  him  against  the  tyranny  of  the  secular  Gov- 
ernment. In  fact  there  was  in  the  middle  of  the  eleventh 
century  very  little  distinction  between  Lay-Officials  and 
Church-Officials.  Many  of  the  Bishops  were  not  Ecclesias- 
tics at  all  but  laymen,  laymen  of  the  most  vicious,  cruel,  and 
dissolute  sort.  The  Church  had  become  barbarized  by  the 
Feudal  System.  As  we  know,  according  to  the  principles 
of  that  system,  office  had  become  the  incident  of  property. 
He  who  conferred  the  property,  therefore,  conferred  the 
office.  The  Emperor  and  the  Kings  could,  thus,  create 
Bishops  of  their  own  appointment  by  selecting  certain  per- 
sons and  conferring  upon  them  the  fiefs  held  by  the  Church 
in  the  several  Dioceses  from  the  Crown.  The  great  diffi- 
culty in  realizing  the  plans  of  Hildebrand  was,  therefore, 
the  question  of  the  properties  held  by  the  Church  from  the 
Crown.  The  Emperor  and  the  Kings  would  not  allow  the 
Church  to  keep  the  Crown  properties  without  having  some- 
thing to  say  as  to  who  should  hold  and  administer  them, 
and  the  Bishops  were  unwilling  to  surrender  these  properties 
to  the  Crown  and  rely  wholly  upon  the  offerings  of  the 
faithful. 


142  GOVERNMENT  AND  LIBERTY 

For  fifty  years  and  more  the  struggle  of  ideas  went  on 
and  frequently  degenerated  into  actual  battle  and  the  reck- 
less shedding  of  blood.  By  the  help  of  the  Normans  of 
Sicily,  the  Countess  of  Tuscany,  the  Saxons,  and  the  An- 
archists of  Milan,  the  great  Pope,  Hildebrand,  Gregory  VII, 
who  would  neither  hear  to  the  appointment  of  the  Bishops 
and  Abbots  by  the  secular  power  nor  to  the  surrender  of 
the  Royal  fiefs  held  by  them,  brought  the  King,  Henry  IV, 
to  his  feet.  Then  the  fortunes  of  the  King  came  to  the 
ascendant  and  Gregory  was  forced  from  Rome.  A  Pope, 
Clement  III,  chosen  at  a  rump  Synod  held  at  Mayence, 
was  placed  by  the  King  on  the  Papal  throne,  the  King  was 
crowned  Emperor  by  him,  and  Gregory  died  in  exile  at 
Salerno.  Then  Prince  Conrad,  the  Emperor's  first-born, 
turned  against  his  father  and  caused  himself  to  be  crowned, 
in  Milan,  King  of  Italy  by  the  help  of  the  Saxons  and  Tus- 
cans and  broke  the  Emperor's  heart.  His  second  son, 
Henry,  to  whom  he  turned  for  help  and  consolation,  followed 
the  example  of  his  elder  brother  and  the  miserable  Emperor 
died  in  the  deepest  sorrow  in  the  year  1106. 

In  the  meantime  the  new  Pope,  Urban  II,  had  sought  to 
turn  the  rage  of  the  contending  factions  against  a  foreign 
land.  He  first  stirred  Christendom  to  undertake  the  Cru- 
sades for  delivering  the  sepulchre  of  the  Saviour  from  prof- 
anation by  the  infidel.  Of  course,  there  was  a  religious 
purpose  in  these  movements  and  in  the  minds  of  those 
who  excited  them,  but  I  cannot  help  seeing  in  them  a  deeply 
laid  political  purpose  also  for  clearing  Europe,  in  some  de- 
gree at  least,  of  the  belligerent  Princes  and  Nobles  and 
giving  the  Church  a  better  chance  for  success  against  these 
in  the  struggle  over  the  right  of  investing  the  Clergy  with 
their  offices  and  estates.  They  certainly  had  this  result. 

During  the  first  twenty  years  of  the  twelfth  century  the 


THE  EFFORT  OF  EUROPE  143 

Church  grew  in  strength  and  finally  wrung  from  the  Em- 
peror, Henry  V,  the  Concordat  of  Worms  of  the  year  1122. 
In  this  fundamental  compact  the  Church  won  its  conten- 
tion for  the  right  of  independent  choice  of  the  Pope  and  the 
Bishops  and  Abbots  by  the  Clergy.  The  office  was  dis- 
tinguished from  the  fiefs  held  by  the  Ecclesiastics  and  the 
fiefs  were  made  incidental  to  the  office  instead  of  the  office 
being  incidental  to  the  fiefs.  The  Clergy  of  the  diocese 
should  choose  the  Bishop  and  the  Cardinal  Clergy  of  the 
Roman  Archdiocese  should  choose  the  Pope.  The  secular 
Princes  ceased  to  invest  with  ring  and  crosier,  i.  e.,  ceased 
to  confer  the  ecclesiastical  office,  and  conferred  the  fiefs  by 
the  symbol  of  the  sceptre;  the  rule  of  celibacy  was  enforced, 
thus  preventing  the  inheritance  of  the  fiefs  by  the  heirs  of 
the  Clergy;  and  the  Pope  ruled  as  Sovereign  over  the 
States  of  the  Church. 

Many  historians  bemoan  the  Concordat  of  Worms  as 
an  error  of  history.  I  do  not.  I  do  not  think  that  his- 
tory in  a  large  sense  makes  errors.  I  think  that  men  make 
errors  in  their  misunderstanding  of  the  true  sense  of  the 
historic  movement.  I  think  the  Concordat  of  Worms  was 
a  great  progressive  step  in  the  march  of  civilization.  It 
rescued  the  Church  from  secularization.  It  divorced  the 
interests  of  the  Prelates  from  those  of  the  secular  Princes 
in  the  exercise  of  despotic  secular  powers  over  the  people. 
It  brought  the  Church  back  again,  in  some  degree  at  least, 
to  its  original  position  of  a  great  cosmopolitan  institution 
for  the  defense  of  the  weak,  the  poor,  and  the  downtrodden 
against  the  arbitrary  and  cruel  power  of  the  secular  Gov- 
ernment. 

It  was  not  to  be  expected  that  the  Emperor,  the  Kings, 
and  the  secular  Lords  would  easily  accommodate  them- 
selves, however,  to  this  order  of  things.  The  great  phi- 


144  GOVERNMENT  AND  LIBERTY 

losopher  of  history,  Hegel,  said  that  nothing  is  ever  consid- 
ered as  historically  settled  until  it  repeats  itself.  The 
agreement  at  Worms  was  no  exception  to  this  rule.  So 
soon  as  a  powerful  personality  should  wear  the  Imperial 
Crown  it  was  practically  certain  that  the  struggle  over  the 
question  of  the  investiture  of  the  Clergy  would  be  opened 
again. 

On  the  4th  of  March,  1152,  Frederick,  Duke  of  Suabia, 
known  in  history  as  Barbarossa,  was  elected  German  King 
and  the  battle  was  almost  immediately  renewed.  It  is 
not  my  purpose  to  follow  the  historic  course  of  this  great 
conflict.  For  our  purpose  it  is  sufficient  to  say  that,  suc- 
cessful at  first,  the  King-Emperor  finally  found  his  match 
and  superior  in  Pope  Alexander  III,  and  that  the  Emperor 
was  not  only  forced  to  acknowledge  the  independence  of 
the  Papal  tenure,  the  sovereignty  of  the  Pope  over  the 
States  of  the  Church,  and  the  agreement  at  Worms  con- 
cerning the  investiture  of  the  Clergy,  but  also  the  pre- 
cedence of  the  Pope  over  the  Emperor,  the  superiority  of 
the  Spiritual  power  over  the  secular,  and  the  independence 
in  local  Government  of  the  North  Italian  cities. 

Once  again,  however,  in  the  reign  of  the  Emperor  Henry 
VI,  Barbarossa's  son,  the  Imperial  power  seemed  about  to 
regain  its  old  supremacy  over  the  Papacy  and  the  Church, 
only  to  fall  again,  in  the  reign  of  Frederick  II,  and  during 
the  Papal  regime  of  Gregory  IX  and  Innocent  IV,  into 
deeper  decay.  All  that  Barbarossa  had  conceded  was 
again  ratified  and  in  addition  to  that  the  Emperor  was 
compelled  to  acknowledge,  in  the  Charter  of  1220,  the 
autonomy  of  the  Bishops  and  Abbots,  the  ecclesiastical 
Princes,  within  their  jurisdictions,  and  by  that  of  1232  the 
like  autonomy  of  the  secular  Princes,  making  of  the  Empire 
thus  a  federal  system  of  Government,  with  the  sovereign 


THE  EFFORT  OF  EUROPE  145 

power  as  a  shadowy  something  claimed  by  both  Pope  and 
Emperor,  but  in  the  general  opinion  rather  accorded  to 
the  former  as  the  representative  of  the  Spiritual  power  in 
its  supremacy  over  the  temporal. 

In  France  the  claims  of  the  Church  were  developed  and 
advanced  likewise  upon  the  basis  of  the  principles  of  Pope 
Gregory  VII.  The  tenure  of  the  Church  officials  was  grad- 
ually wrenched  from  the  feudal  control  of  the  King  and 
Lay-Lords;  the  independence  of  the  Papacy  and  its  sover- 
eignty over  the  States  of  the  Church  recognized;  the  celi- 
bacy of  the  Clergy  enforced,  and  the  jurisdiction  of  the 
Church  over  the  domestic  relations  maintained  and  widened. 
There  was  here  no  Emperor  with  his  claim  of  sovereignty 
over  the  Christian  world  with  whom  the  Pope  had  to  con- 
tend and  there  was  little  question  that  the  Church  took 
precedence  over  the  secular  Government.  The  Capetians 
were  engaged  in  the  work  of  establishing  their  tenure  by 
hereditary  right  to  the  Royal  power  and  they  saw  correctly 
that  they  must  preserve  the  friendship  of  the  Pope  and  the 
Clergy  in  order  to  attain  this  end  against  the  opposition 
of  the  Feudal  Lords.  Even  the  great  King  Philip  Augustus 
was  compelled  to  yield  to  the  commands  of  the  Pope  in 
his  attempted  divorce  of  his  Queen  under  the  fascination 
of  the  beautiful  Agnes  of  Meran,  and  remain,  at  least  out- 
wardly, faithful  to  his  lawful  spouse. 

It  is  true,  however,  that  in  the  reign  of  Philip  Augustus 
(1180-1223)  foundations  were  being  laid  for  a  clearer  dis- 
tinction between  the  powers  spiritual  and  the  powers  tem- 
poral which  would  preserve  the  secular  Government  in 
France  against  the  extravagant  claims  of  Gregory  IX  and 
Innocent  IV.  These  consisted  in  the  establishment  of  the 
University  of  Paris,  the  revival  there  of  the  study  of  the 
Roman  Law  under  instructors  brought  over  from,  or  at 


146  GOVERNMENT  AND  LIBERTY 

least  educated  in,  Bologna  and  the  development  of  the 
class  of  legists  or  lawyers.  Under  the  influence  and  direc- 
tion of  the  lawyers,  King  Philip  and  especially  King  Louis 
IX  (1226-70),  Saint  Louis,  organized  the  law  courts, 
known  as  the  Parliament  of  Paris  and  its  branches.  King 
Louis  also  restored  the  Missi  Dominici  of  Charlemagne. 

It  is  easy  to  see  how  a  revival  of  the  knowledge  of  the 
Roman  Civil  law  would  favor  the  development  of  ideas 
hostile  to  the  claim  of  the  Popes  and  the  Church  that  the 
spiritual  power  was  superior  to  the  temporal  in  secular 
affairs,  and  also  to  the  claim  of  the  Roman  Papacy  to  an 
unlimited  power  over  the  Gallican  Church.  The  fruits  of 
this  development,  however,  came  later,  at  the  beginning 
of  the  fourteenth  century,  under  the  reign  of  Philip  the 
Fair,  who  was  able  to  vindicate  the  independence  both  of 
the  French  Monarchy  and  the  Gallican  Church  against  the 
assertions  of  supremacy  over  both  by  the  great  Pope  Boni- 
face VIII.  This  was,  however,  a  first  step  out  of  the 
Middle  Ages  and  belongs  rather  to  the  next  period  in  the 
development  of  the  European  state. 

In  England  the  Church,  during  the  Anglo-Saxon  period, 
was,  as  we  have  seen,  though  the  daughter  of  Rome,  some- 
what more  independent  of  Rome  than  the  Continental 
Churches,  nevertheless  it  was  the  most  powerful  institu- 
tion of  the  Anglo-Saxon  state.  It  held  one-third  of  the 
landed  property  of  England;  it  controlled  the  domestic 
relations  of  the  people;  and  its  Bishops,  Abbots,  and 
Priests  shared  with  the  King,  the  Earldormen,  and  the 
Theyns  the  entire  Government  of  the  Kingdom.  In  order 
to  bring  the  Church  in  England  more  completely  into  the 
Papal  organization,  the  Pope  had  sanctioned  the  conquest 
by  the  Norman  Duke.  So  soon  as  the  conquest  was  ac- 
complished, the  Pope  and  the  King  placed  the  Norman 


THE  EFFORT  OF  EUROPE  147 

Prelate  Lanfranc  in  the  Archiepiscopal  seat  of  Canterbury 
and  imposed  upon  him  the  task  of  Normanizing  the  Church 
in  England.  This  work  was  carried  rapidly  forward,  and 
in  a  short  time  Norman  Prelates  occupied  most  of  the  im- 
portant places  in  the  Church. 

King  William,  however,  tried  to  maintain  for  the  Royal 
prerogatives  the  power  exercised  by  the  Anglo-Saxon  Kings 
of  the  appointment  of  Bishops  and  Abbots  and  of  vetoing 
the  canons  adopted  by  the  Clergy.  The  Bishops  and 
Clergy  generally  were  inclined  to  yield  to  the  Royal  claims, 
but  Lanfranc's  successor,  the  great  Anselm,  overawed  and 
overcame  both  King  and  Bishops  and  forced  the  King  and 
the  secular  power  to  cease  investing  the  Clergy  by  ring 
and  crosier,  i.  e.,  to  cease  investing  them  with  the  ecclesi- 
astical office,  and  to  be  satisfied  with  the  clerical  acknowl- 
edgment of  loyalty  and  obligation  for  temporalities,  and 
to  no  further  oppose  appeal  to  the  Pope.  The  successor  of 
Anselm  as  Archbishop  of  Canterbury,  William  of  Corboie, 
held  at  the  same  time  the  office  of  Papal  Legate  in  Eng- 
land. 

King  Henry  II  succeeded  in  arresting  the  monarchic  de- 
velopment in  the  Church  in  England  momentarily  at  this 
point.  By  the  Constitutions  of  Clarendon,  1164,  it  was  pro- 
claimed, among  other  things,  that  the  Bishops  should  be 
elected  by  the  Clergy  subject  to  the  approval  of  the  King; 
that  appeal  might  be  taken  from  the  decisions  of  the  Arch- 
bishop to  the  King,  which  should  be  final;  and  that  the 
Clergy  must  first  establish  in  the  secular  Courts  their 
clerical  character  before  they  could  claim  benefit  of  clergy, 
i.  e.,  the  privilege  of  being  subject  only  to  the  jurisdiction 
of  Church  tribunals.  Both  the  Archbishop  of  Canter- 
bury and  the  Pope  repudiated  these  Edicts  or  Constitu- 
tions, and  the  murder  of  the  Archbishop,  Becket,  by  four 


i48  GOVERNMENT  AND  LIBERTY 

of  the  King's  Knights,  demoralized  the  King's  cause  and 
gave  the  victory  to  the  Church  and  the  Papacy. 

The  weak  reigns  of  Richard,  John,  and  Henry  III  fol- 
lowed, during  which  the  Pope,  the  powerful  Innocent  III, 
placed  his  own  appointee,  Langton,  in  the  Archiepiscopal 
seat  of  Canterbury,  appointed  the  Bishops  at  will  and  even 
disposed  of  the  benefices  of  the  Church  in  England  by  grant- 
ing many  of  them  to  Italians  and  others  of  foreign  birth, 
and  forced  the  King  to  receive  his  Crown  from  the  hands 
of  the  Pope  as  a  Papal  fief.  With  this  the  supremacy  of 
the  Church  under  the  Papal  control  reached  its  highest 
point  in  England. 

With  the  close  of  the  century,  the  thirteenth,  the  devel- 
opment of  the  English  nation  and  national  spirit  had  gone 
so  far  that  it  was  bound  to  manifest  itself  in  asserting  limi- 
tations upon  both  the  Royal  and  Papal  power.  The  es- 
tablishment of  the  English  Parliament  at  the  end  of  the 
century  marks  the  beginning  of  the  end  of  the  Middle 
Ages  in  England,  at  least  in  so  far  as  the  supremacy  of 
the  Church  was  concerned. 

The  fourth  point  in  our  definition  of  the  Middle  Ages, 
viz. :  the  people,  requires  but  brief  treatment,  because  there 
was  really  no  such  body  in  the  Middle  Ages.  There  was  a 
population;  there  were  the  subjects  of  Government;  there 
were  Vassals  and  tenants;  there  were  serfs  and  slaves,  but 
not  people.  This  word  expresses  the  conception  of  a  body 
held  together  by  some  internal  bond,  by  a  spiritual  con- 
sensus, a  body  which  has  a  common  consciousness  of 
fundamental  rights  and  a  common  sense  of  necessary  duty, 
and  a  common  intelligence  and  character-force  adequate 
to  the  attainment  of  those  rights  and  the  fulfilment  of  that 
duty.  In  these  things  it  is  that  the  people  is  distinguished 
from  the  population,  or  a  part  thereof,  from  the  mere  sub- 


THE  EFFORT  OF  EUROPE  149 

jects  of  Government,  from  the  mob,  from  a  band  of  heelers 
or  followers.  In  another  respect,  also,  of  a  different  char- 
acter, it  differs  from  these  things,  viz.:  in  the  fact  that  it 
comprehends  all  persons  within  a  given  territorial  unity, 
and  not  simply  a  part  or  a  fragment  thereof.  A  real  peo- 
ple cannot,  in  fact,  exist  under  the  monarchic  state-form 
or  under  the  feudal  aristocratic  state-form.  It  can  really 
exist  only  where  it  holds,  in  organization,  the  sovereign 
power,  and  where  all  the  organs  exercising  governmental 
power,  i.  e.,  power  which  may  be  realized  by  the  employ- 
ment of  physical  force,  are  subject  to  its  superior  regulation 
and  control.  A  people  in  a  true  sense  is  a  product  of  his- 
toric development,  a  late  product,  the  appearance  of  which 
marks  a  high  point,  if  not  the  highest,  in  political  civilization. 
During  the  Middle  Ages  the  organization  of  the  popula- 
tion in  the  Christian  Church  came  nearer  to  being  the 
people  than  in  any  other  character.  In  every  other  char- 
acter the  population  was  broken  up  into  fragments,  having 
little  or  no  connection  and  existing  under  the  relation  of  slave 
or  servant  to  master,  or  of  tenant  or  Vassal  to  Landlord, 
or,  at  the  highest,  of  subject  to  Government,  with  so  great 
a  variety  in  law  and  custom  that  no  common  opinion  was 
possible.  In  the  Church,  on  the  other  hand,  a  common  re- 
ligious belief  and  a  common  morality,  together  with  certain 
common  juristic  principles  derived  from  the  Roman  Civil 
law,  prevailed  and  developed  slowly,  but  surely,  a  consensus 
of  opinion  which  made  for  the  development  of  a  people. 
When  the  consensus  was  ripe  it  seized  the  sovereignty  and 
the  population  became  the  people,  but  this  belongs  to  the 
period  of  the  Revolution,  between  the  Middle  Ages  and 
which  lies  the  period  of  the  revived  Monarchy,  the  Renais- 
sance, the  Reformation,  and  the  Free  Cities.  At  this  point 
it  is  sufficient  to  say  that  in  the  Middle  Ages  there  was  no 


150  GOVERNMENT  AND  LIBERTY 

people,  only  a  population  in  a  variety  of  subject  relations, 
but  preparing  under  the  discipline  of  Christian  morals  to 
develop  a  philosophical  consensus,  which  would  lead  finally 
to  the  transformation  of  the  population  into  the  people. 

The  final  element  in  our  conception  of  the  Middle  Ages 
is  the  method  of  thought  and  reasoning,  in  other  words, 
its  logic;  because  the  Middle  Ages  had  neither  philosophy 
nor  science.  In  the  psychic  sphere,  it  had  only  theology, 
based  on  revelation,  and  logic.  The  course  of  thought  and 
reasoning  applied  to  any  and  every  subject  was  thus  a  syl- 
logistic deduction  from  premises  furnished  by  revelation. 
The  revealed  premises  went  unchallenged  as  divine  truth, 
divine  principle,  and  the  conclusion  was  reached  by  the 
simple  process  that  A  is  B,  C  is  A,  therefore  C  is  B. 

Of  course,  the  question  as  to  the  correct  interpretation 
of  the  meaning  of  the  revealed  premises  could  not  fail  to 
arise,  and  the  one  thing  that  was  settled  about  this  in  the 
Middle  Ages  was,  that  it  was  not  to  be  made  by  the  indi- 
vidual layman  for  himself.  In  some  way  or  other  it  must 
be  done  by  the  Church.  But  again  the  question  demanded 
further  answer.  By  whom  in  the  Church  and  in  what 
way?  Should  it  be  by  each  Clergyman,  or  by  each  Bishop, 
or  by  each  Archbishop,  or  by  the  Pope,  or  by  a  Council, 
provincial,  national,  or  ecumenical  ?  The  Middle  Age  was 
never  able  to  give  a  consistent  answer  to  this  part  of  the 
question,  nor  to  that  part  relating  to  the  mode  or  form  in 
which  the  correct  interpretation  must  be  given,  in  order 
to  distinguish  it  from  mere  personal  opinion  and  give  it 
the  stamp  of  official  authenticity.  It  is  not  quite  fifty 
years  ago  that  the  Church  finally  settled  this  point.  The 
thinking,  therefore,  of  the  Middle  Ages  had  two  great  faults, 
at  least.  The  first  was  the  uncertainty  about  the  correct 
meaning  of  the  premises  and  the  second  was  the  barren- 


THE  EFFORT  OF  EUROPE  151 

ness  of  result.  This  element  of  the  Middle  Ages  was, 
further,  the  most  persistent  of  them  all.  It  held  its  sway 
over  the  movement  of  thought  to  the  period  of  Bacon  and 
Descartes  and  was  then  supplanted  by  the  inductive 
method,  the  method  of  research  for  the  discovery  and 
meaning  of  facts,  and  of  proceeding  by  comparison  and  in- 
duction to  conclusions. 

From  this  brief  description  as  well  as  definition  of  the 
V  Middle  Ages,  it  will  now  be  possible  to  discuss  the  question 
how  the  Middle  Ages  solved,  or  attempted  to  solve,  the 
great  problem  of  the  reconciliation  of  Government  and 
Liberty.  As  we  have  seen  in  our  survey  of  the  Feudal 
System,  the  Emperor  and  the  Kings  had  no  direct  relation 
to  the  individuals  of  the  great  subject  classes  except  to 
such  persons  as  dwelt  upon  the  landed  estates  of  the  Crown. 
Over  these  the  Government  of  the  Emperor  and  the  respec- 
tive Kings  was  that  rather  of  master  over  slaves  and  serfs 
than  of  Sovereign  over  Subject.  All  other  persons  of  the 
subject  classes  were  the  tenants,  serfs,  or  slaves  of  the  great 
Vassals  of  the  Crown,  lay  and  ecclesiastical,  and  were 
under  the  immediate  unrestricted  Government  of  each  of 
these  great  Landlords  on  his  own  estate,  while  these  Land- 
lords were  exempt  from  the  control  of  the  Emperor  and 
Kings,  except  as  provided  in  the  grant  of  estates  or  offices 
by  the  Crown  to  them.  As  we  have  seen,  therefore,  the 
political  system  of  the  Middle  Ages  was  practically  au- 
tocracy by  the  local  Lord  of  each  estate  or  Manor  over  the 
tenants,  serfs,  and  slaves  living  upon  the  same,  coupled 
with  anarchy  in  the  relations  of  the  Landlords,  the  fief- 
holders,  to  the  Crown.  The  relation  of  Sovereign  to  Sub- 
ject had  given  way  almost  entirely  to  that  of  Lord  to  Vassal, 
master  to  serf  and  slave.  Governmental  power  had  be- 
come incident  to  property  in  land.  Public  relations  had 


152  GOVERNMENT  AND  LIBERTY 

become  subordinated  to  private.  While  there  was  thus  a 
sort  of  Constitution  subsisting  between  the  Crown  and 
each  Vassal  of  the  Emperor  or  King,  reserving  to  the 
Vassal  all  powers,  prerogatives,  and  liberties  not  surrendered 
to  the  Crown,  there  was  no  provision  whatever  of  Individual 
Liberty  for  the  serf  or  slave,  the  great  mass  of  the  popula- 
tion. While  there  was,  thus,  abundance  of  Liberty  for  the 
immediate  Vassals  of  the  Crown,  and  some  Liberty  for  the 
Valvassors,  or  Vassals  of  the  great  Vassals,  there  was  none 
whatever,  so  far  as  the  secular  institutions  were  concerned, 
for  the  serfs  and  slaves,  the  great  mass  of  the  population. 
Moreover,  as  we  have  seen,  the  secular  Constitution  pro- 
vided no  guarantee  of  the  liberties  of  the  Vassals.  They 
were  referred  to  their  own  interpretation  and  their  own  de- 
fense of  them,  each  in  his  own  case.  This  situation  led 
indeed  to  frequent  combinations  among  the  Vassals  to 
protect  each  member  of  the  same  by  the  combined  power 
of  all  against  the  encroachments  of  the  Crown,  the  most 
notable  of  which  was  the  league  of  the  Barons  at  Runny- 
mede,  and  the  extortion  by  them  of  Magna  Charta  from 
King  John.  If  the  Barons  composing  this  league  had 
remained  outside  of  the  Government  and  had  not  each 
exercised  the  powers  of  Government  in  his  own  estate, 
here  would  have  been  a  constitutional  organ  of  a  logically 
consistent  and  most  effective  sort  for  maintaining  Indi- 
vidual Liberty  against  governmental  encroachment,  but 
neither  of  these  conditions  held  in  regard  to  this  league  of 
the  English  Barons  of  1215  or  to  any  other  Baronial  com- 
bination against  the  Government  of  the  Emperor  or  of  the 
Kings.  The  Baronial  league  of  1215  developed,  before  the 
end  of  the  century,  into  the  House  of  Lords  of  the  national 
Parliament,  which  itself  developed  into  the  supreme  law- 
giving  body  of  the  Government.  The  Baronial  leagues 


THE  EFFORT  OF  EUROPE  153 

upon  the  Continent  were  generally  of  short  duration  and 
created  no  permanent  institution  for  the  defense  of  Indi- 
vidual Liberty,  either  for  their  own  members  or  for  the 
lower  classes  of  the  population. 

We  must,  therefore,  turn  again  to  the  Church  to  find  the 
defense  of  the  Individual  Liberty  of  the  great  mass  of  the 
population  against  the  despotism  of  Government  either  of 
Emperor,  King,  or  Feudal  Lord.  The  Church,  as  we  have 
seen,  had  reached  the  culmination  of  hierarchic  organiza- 
tion under  the  Papacy  of  the  Bishop  of  Rome.  It  paid  no 
attention  to  secular  lines.  It  was  now  the  one  universal 
organization  of  Western  Christendom  and  its  membership 
included  all  persons  of  whatever  sex,  class,  or  age.  Had 
the  Church  held  itself  free  from  all  participation  in,  or  ex- 
ercise of,  the  powers  of  secular  Government,  i.  e.}  Govern- 
ment by  physical  force,  actual  or  possible,  it  would  have 
been  a  consistent  and  most  powerful  defmer  and  defender 
of  the  Liberty  of  the  Individual,  but  such  was  not  the  case. 
We  have  seen  how  Bishops  and  Abbots  became  the  Vassals 
of  Emperors  and  Kings,  receiving  vast  landed  estates  from 
them  and  governing,  in  all  respects,  the  population  resi- 
dent upon  the  same,  becoming  thus  Manorial  Lords  as 
well  as  Ministers  of  religion.  The  result  of  all  this  was, 
as  we  know,  that  the  Emperor  and  the  Kings  claimed  the 
right  to  confer  the  ecclesiastical  office  as  well  as  the  prop- 
erties of  the  Crown  attached  to  it,  and  actually  made,  in 
this  way,  dissolute  laymen  Bishops  and  Abbots,  and  that 
such  Bishops  and  Abbots  addressed  themselves  to  the 
exercise  of  despotic  governmental  power  over  the  inhabi- 
tants of  these  estates  and  then  over  their  Church  subjects 
not  resident  on  their  estates,  rather  than  to  the  work  of 
protecting  the  individual  against  the  despotic  and  arbi- 
trary powers  of  the  secular  Government.  Gregory  VII, 


154  GOVERNMENT  AND  LIBERTY 

Benedict  IX,  Innocent  III,  and  Innocent  IV,  did  great 
work  for  civilization  in  separating  the  Church  from  the 
secular  Government  and  secular  society,  by  their  reforms 
concerning  the  investiture  of  the  Ecclesiastics  with  their 
offices  and  concerning  the  marriage  of  Prelates  and  Priests. 
Nevertheless  they  could  not  effect  the  surrender  of  the 
estates  held  by  the  Bishops  and  Abbots  from  the  Emperor, 
Kings,  and  Lay-Lords,  and  thus  the  Prelates  continued  to 
be  Governors  over  such  districts  in  secular  as  well  as  eccle- 
siastical matters  and  felt  themselves  more  interested  in 
Government  than  in  Liberty.  Some  of  the  Popes  were, 
indeed,  in  favor  of  surrendering  the  estates  of  the  Church 
held  of  the  secular  powers  and  reducing  the  Church  to  its 
original  poverty  and  to  dependence  upon  the  free  contri- 
butions of  the  faithful,  but  the  Bishops  and  Abbots  gen- 
erally would  not  hear  to  it. 

It  is  easy  to  understand  that  when  the  Church  lost  thus 
in  the  Middle  Ages  its  fundamental  character  as  an  insti- 
tution whose  power  rested  upon  conviction,  influence,  and 
the  response  of  the  religious  sense  and  the  moral  sense, 
and  adopted  the  methods  of  secular  Government,  i.  e.y 
physical  force,  to  realize  its  purposes,  it  became  even  more 
despotic  than  the  secular  power  itself,  because  it  undertook 
to  control  by  physical  force  not  only  the  outward  act,  but 
the  internal  thought  and  belief.  Its  persecutions  for  heresy 
were  the  culmination  of  despotism  in  Government  and  it 
is  difficult  to  see  that  these  persecutions  furthered  civiliza- 
tion from  any  point  of  view.  But  with  all  this  the  Church 
was,  during  the  entire  Middle  Ages,  the  refuge  of  the  com- 
mon man  against  the  rapacity  of  the  secular  powers.  The 
Prelates  and  also  the  general  Clergy  maintained  the  right 
of  asylum  in  the  Churches,  the  right  of  intercession  with  the 
secular  powers  in  behalf  of  the  Liberties  of  the  common 


THE  EFFORT  OF  EUROPE  155 

man,  even  in  behalf  of  the  slave,  and  also  enforced  what 
was  known  as  the  Truce  of  God,  whereby  violence  was  re- 
strained by  common  agreement  for  a  large  portion  of  the 
time  of  each  week.  They  held  the  torch  of  learning;  they 
represented  reason  as  superior  to  passion;  they  represented 
conscience  as  opposed  to  barbaric  lust;  and  they  were  the 
patrons  of  art.  Their  law  in  the  secular  Government  of 
the  inhabitants  of  the  Church  estates,  when  religious  belief 
was  not  involved,  was  more  humane  than  the  feudal  cus- 
tom which  elsewhere  prevailed.  They  substituted  the 
Roman  law  system  of  evidence  for  the  barbarous  ordeals  of 
the  secular  tribunals.  Lastly  and  most  important  of  all, 
they  helped  mightily  in  the  building  of  the  cities,  where, 
ultimately,  the  common  man  developed  the  power  of  demo- 
cratic organization  and  opinion.  During  the  centuries 
from  the  ninth  to  the  thirteenth  the  oppressed  tenants, 
serfs,  and  slaves  of  the  Manorial  estates  sought  refuge  in 
the  towns  or  places  where  the  seats  of  the  Bishops  and 
Abbots  were  located.  At  first,  they  came,  of  course,  under 
the  Government  of  the  Prelates,  not,  however,  as  residents 
upon  Church  estates,  but  as  subjects  of  the  Church.  Their 
position  was  thus  from  the  first  much  freer  than  that 
of  the  dependants  of  the  Church  Manors,  and  as  they 
became  associated  in  trade  and  industry  with  each  other 
in  the  towns  and  were  under  the  jurisdiction  of  the  Roman 
law,  a  law  based  upon  general  principles  and  administered 
largely  by  the  Clergy,  they  gradually  developed  those 
points  of  agreement  in  opinion  concerning  rights  and  wrongs, 
Government  and  Liberty,  which  made  of  them  a  real  citi- 
zen body  and  prepared  them  to  take  municipal  Govern- 
ment into  their  own  hands.  But  this  belongs  to  the  next 
period  in  the  political  development  of  Europe  and  its  treat- 
ment must  be  deferred  to  our  next  chapter.  The  great 


156  GOVERNMENT  AND  LIBERTY 

lesson  for  us  in  this  connection  is  that  when  the  defender 
of  Individual  Liberty  becomes  participant  in  the  legislative 
and  executive  Government  it  transfers  too  largely  its  in- 
terests and  its  efforts  to  Government,  to  the  expansion  and 
exaggeration  of  Government,  to  remain  a  real  and  sufficient 
defender  of  Liberty.  The  time  has  then  come  for  the  es- 
tablishment of  a  new  organ  of  Liberty  outside  of  the  politi- 
cal Government,  one  which  stands  for  the  subjects  of  Gov- 
ernment and  which  sees  its  first,  if  not  its  only,  duty  in 
protecting  the  Liberty  of  the  Individual  against  the  un- 
warranted or  unnatural  assaults  of  Government  upon  it. 


CHAPTER  VIII 

THE  REVIVAL  OF  THE  MONARCHY 

PERHAPS  the  better  title  for  this  chapter  would  be  the 
development  of  the  National  Monarchies,  because  what 
had  passed  as  Monarchy  before  this  period  differs  very 
greatly  from  the  creations  of  the  fifteenth,  sixteenth,  and 
seventeenth  centuries  bearing  that  name.  The  elements 
and  movements  contributing  to  the  production  of  this  new 
Monarchy  were  the  Free  Cities  and  their  growth  from  the 
eleventh  to  the  fifteenth  centuries,  the  Renaissance  or  the 
new  Learning,  the  Reformation,  the  Standing  Army,  the 
Royal  power  of  taxation,  and  the  increased  diplomatic 
activity  of  the  age. 

Let  us  examine  all  of  these  in  some  detail. 

First,  the  Free  Cities. 

In  the  early  Middle  Ages,  the  towns  were  either  the  Mu- 
nicipalities of  the  era  of  the  Roman  Empire,  or  they  had 
grown  up  chiefly  around  the  seats  of  the  Bishops.  In  both 
cases  they  were  governed  locally,  at  least,  by  the  Bishops 
under  the  general  principles  of  the  ecclesiastical  and  Roman 
Civil  law.  During  the  Middle  Ages  the  secular  Lords  and 
the  Kings,  who  held  estates  and  domain  around  the  towns, 
either  encroached  upon  the  Bishop's  jurisdiction  or  kept 
Bailiffs  in  the  towns  to  administer  the  Feudal  law  over  such 
of  the  inhabitants  as  were  not  of  the  Roman  or  Celto- 
Roman  race.  This  double  jurisdiction  and  variety  of  law 
administered  in  the  towns  created  constant  turmoil,  with 

157 


158  GOVERNMENT  AND  LIBERTY 

the  result  that  the  inhabitants  themselves,  thrown  much 
more  closely  together  than  the  inhabitants  of  the  country, 
and  living  thus  under  much  more  favorable  conditions  for 
the  development  of  a  consensus  of  opinion  among  them- 
selves, began  forming  associations  for  the  protection  of 
their  interests  against  the  arbitrary  rule  of  either  Barons 
or  Bishops.  These  associations,  originally  economic  in 
their  nature,  gradually  became  also  political,  and  either 
bought  or  wrested  by  force  from  the  Kings  or  Barons 
articles  of  incorporation  for  the  towns,  thus  restoring  them 
to  the  condition  of  Municipalities  under  the  Roman  system. 

Closely  connected  with  this  development,  and  in  no  small 
degree  the  source  of  it,  was  the  rise  of  the  Jurists  or  lawyer 
class,  especially  in  France.  The  Pandects  of  Justinian 
were  discovered  and  made  the  basis  of  the  Law  School  of 
Bologna  in  the  first  half  of  the  twelfth  century,  and  the 
study  of  them  spread  rapidly  toward  the  Northwest  and 
became  quickly  a  part  of  the  programme  of  studies  in  the 
Universities  at  Montpellier  and  Paris.  It  was  the  new 
class  of  Professionals  created  and  developed  by  these  studies, 
the  Jurists,  who  knew  how  to  organize  the  Municipalities 
on  a  secular  basis,  who  created,  or  rather  recommended 
the  King  of  France  to  create,  the  Judicial  Parliaments  of 
France,  and  who  became  most  valuable  allies  to  the  Kings 
in  creating  the  new  Monarchies. 

The  great  importance  of  the  Municipalities  or  Free  Cities 
to  the  development  of  the  new  Monarchies  consisted  in  the 
facts  that  their  freedom  or  independence  was  freedom  from 
the  Government  of  the  Baron,  or  the  Bishop,  not  freedom 
from  the  Government  of  the  King,  and  that  a  strong  pop- 
ular power  friendly  to  the  King,  as  its  protector  against  the 
encroachments  of  Baron  and  Bishop,  was  thus  created. 
The  relation  between  the  King  and  this  part  of  the  popu- 


THE  EFFORT  OF  EUROPE  159 

lation  was  thus  not  the  relation  of  Lord  to  Vassal,  and  then 
to  under- Vassal,  but  of  Ruler  to  Subject. 

The  idea  that  the  individual  owed  an  allegiance  and 
obedience  to  Government  not  conditioned  by  any  specific 
contract  between  himself  and  any  superior  nor,  on  the 
other  hand,  of  the  nature  of  slave  to  master,  began  to  come 
into  the  consciousness  of  the  urban  populations.  At  first 
this  conception  was  naturally  very  dim  and  uncertain,  for 
the  burgher  class,  as  it  originally  formed  itself  in  the 
eleventh  and  twelfth  centuries,  was  composed  of  the  little 
tradesmen,  artisans,  and  a  few  small  agriculturalists,  who 
had  taken  up  their  residence  within  the  town  limits;  but 
as  the  lawyers  and  physicians  and  official  classes  grew  and 
were  fused  with  the  tradesmen,  artisans,  and  small  land- 
owners into  the  burgher  class  of  the  fourteenth  and  fifteenth 
centuries,  the  notion  of  the  relation  of  Subject  and  Ruler 
grew  clearer  and  clearer,  and  supplanted  more  and  more, 
as  time  wore  on,  the  feudal  conception  of  Vassal  to  Lord. 
This  new  burgher  class,  often  called  the  third  estate,  furn- 
ished the  stock  and  stuff  for  the  development  of  the  new 
Monarchy,  not  only  in  a  physical  and  material  sense,  but 
also  in  an  educational  and  a  theoretical  sense,  in  the  neces- 
sary sociological  sense  for  the  development  of  a  people  out 
of  a  hodge-podge  of  conflicting  classes.  It  must  not  be 
understood  that  this  new  burgher  society  had  anything  in 
the  nature  of  a  national  consensus  or  clearly  perceived  its 
relation  to  the  King.  Generally  speaking  we  might  say 
that  there  were  as  many  burgher  societies  as  Cities,  and 
that  each  City  went  to  the  limit  of  independence  not  only 
against  Baron  or  Bishop,  but  also  against  King.  Political 
thought  was  not  yet  refined  enough  to  conceive  the  City 
as  a  local  administrative  body  under  a  higher  legislative 
power  and  a  broader  sovereignty.  Such  distinctions  came 


160  GOVERNMENT  AND  LIBERTY 

much  later.  At  the  beginning  of  the  fifteenth  century 
each  Free  City  regarded  itself  as  practically  independent 
of  every  superior,  as  practically  sovereign,  and  in  some 
cases,  as  in  the  Lombardian  Cities  in  the  last  half  of  the 
twelfth  century,  they  leagued  themselves  against  the 
Royal  or  Imperial  power,  and  actually,  in  the  case  cited, 
overcame  it.  But  with  all  this  crudeness,  confusion,  and 
sometimes  hostility,  the  urban  mind  was  beginning  to  be 
formed  and  like  conditions  were  forming  it  practically 
upon  the  same  lines  in  the  different  communities,  and  the 
Kings  were  becoming  more  and  more  conscious  that  here 
was  to  be  found  the  physical  and  intellectual  power  for 
lifting  the  throne  above  Papal,  episcopal,  and  baronial 
defiance  and  making  of  it  the  superior  Government  over 
all  alike,  virtually  the  state  itself. 

This  relation  of  the  urban  population  to  the  Crown  was 
seen  most  clearly  in  the  building  of  the  Spanish  Monarchy 
where  the  league  of  the  Cities  of  Castile,  the  Holy  Her- 
mandad,  furnished  King  Ferdinand  with  the  military  and 
the  financial  power  for  realizing  his  plans  for  the  creation  of 
the  national  Monarchy  of  Spain.  Such  national  leagues 
of  the  Cities  were  heacjed  straight  toward  the  development 
of  a  people,  a  people  which  would,  of  course,  at  first,  be 
the  people  subject,  but  out  of  which  would  develop,  when 
the  time  and  the  conditions  were  ripe,  the  people  sovereign. 
And  even  when  these  leagues  did  not  exist,  like  conditions 
and  relations  produced,  in  the  different  Municipalities, 
something  like  an  agreement  in  opinions  and  purposes  and 
made  it  easy  for  the  King  to  become  the  immediate  bond 
of  union  between  them.  On  the  whole  the  Free  Cities 
furnished  the  popular  power  for  offsetting  the  decentraliz- 
ing power  of  the  Barons  and  the  Bishops,  a  power  which 
increased,  too,  continually  at  the  expense  of  that  of  the 


THE  EFFORT  OF  EUROPE  161 

Barons  and  Bishops,  in  that  the  better  conditions  offered 
the  lower  classes,  the  common  man,  in  them  drew  the  ten- 
ants, serfs,  and  slaves  of  the  Lords  into  their  walls  and 
depopulated  the  Manorial  estates.  This  popular,  demo- 
cratic power  of  the  Free  Cities  found  its  first  national  or- 
ganization around  the  new  Monarchies  of  the  fifteenth, 
sixteenth,  and  seventeenth  centuries  and  was  by  them 
fused  into  the  new  nations  of  modern  times,  and  it  enabled 
these  Monarchies  to  triumph  over  the  Feudal  System  and 
the  Church  and  to  lead  the  way  to  the  modern  conception 
of  the  state. 

Secondly,  the  contribution  made  by  what  is  known  in 
history  as  the  Renaissance  to  the  development  of  the 
Monarchic  state  was,  if  more  psychical,  equally  potent. 
By  some  historians  the  term  Renaissance  is  made  to  cover 
the  entire  movement  out  of  the  Middle  Ages  into  the 
modern  time.  In  this  would  be  included  the  revival  of 
ancient  learning  and  culture,  the  discoveries  in  chemistry, 
physics,  mechanics,  cosmology,  and  astronomy,  the  Ref- 
ormation, and  the  new  Monarchies  of  the  fifteenth,  six- 
teenth, and  seventeenth  centuries.  I  think  it  better  in 
some  respects  to  give  it  a  narrower  meaning,  however 
closely  connected  all  of  these  parts  of  the  one  great  de- 
velopment may  be,  because  I  am  scientifically  interested 
in  not  discrediting  the  Middle  Ages,  by  representing  them 
as  the  "Dark  Ages,"  to  which  light  came  only  from  the 
Orient  and  Ancient  Greece  and  Rome.  There  were  ele- 
ments of  developing  culture  in  the  West  which  may,  in- 
deed, have  been  helped  on  by  the  revived  knowledge  of 
the  Orient  and  of  European  antiquity,  but  which  were 
indigenous  and  which  asserted  themselves  with  very  little 
encouragement  from  without.  I  prefer,  therefore,  to  use 
the  term  Renaissance  as  designating  the  revival  of  a  knowl- 


i62  GOVERNMENT  AND  LIBERTY 

edge  in  Europe  of  the  Orient  and  of  European  antiquity, 
although  I  would  not  confine  it  to  the  study  of  Hebrew, 
Greek,  and  Latin  and  the  literatures  embraced  in  these 
languages.  I  would  make  it  include  also  the  knowledge 
of  the  social  and  political  systems  and  of  the  educational 
principles  and  philosophical  and  aesthetic  spirit  which  dis- 
tinguished the  Ancient  World  from  Mediaeval  Europe. 
Only  in  this  way,  I  conceive,  can  we  give  due  credit  to 
all  the  forces  conspiring  to  lift  Europe  out  of  the  Mediaeval 
into  the  Modern  period  of  its  development. 

The  Renaissance,  in  the  sense  we  have  given  it,  began 
with  the  revival  of  the  study  of  Latin  in  Italy  in  the  middle 
of  the  fourteenth  century.  Undoubtedly,  a  number  of 
persons  were  engaged  in  this  work  about  the  same  time, 
but  the  one  name  which  has  been  celebrated  as  the  orig- 
inator of  the  movement  is  Francesco  Petrarcha. 

Ancient  Latin  and  ancient  Greek  were,  however,  so 
closely  connected  that  the  researches  in  the  one  language 
naturally  ran  into  those  in  the  other.  Petrarch  himself 
did  not  know  Greek,  but  he  recognized  the  importance  of 
a  knowledge  of  this  more  ancient  language  and  literature 
and  urged  the  necessity  of  reviving  the  study  of  them.  It 
was  Boccaccio,  however,  who  stands  to  the  revival  of  Greek 
learning  as  Petrarch  to  that  of  Latin. 

The  first  step  was,  of  course,  the  collection  of  Latin  and 
Greek  manuscripts.  A  large  number  of  Italian  scholars, 
chief  among  whom  were  Filefo,  Poggio,  Guarino,  Aurispa, 
addressed  themselves  to  this  work,  sustained  by  the  men 
of  wealth,  the  Rulers,  and  even  by  the  Popes.  A  veritable 
craze  for  learning  spread  through  all  classes,  especially  the 
upper  classes,  in  Italy  and  from  Italy  throughout  Christian 
Europe.  Reuchlin,  Erasmus,  Lope  de  Vega,  Calderon, 
Cervantes,  Rabelais,  Colet,  More,  Ascham,  and  Shake- 


THE  EFFORT  OF  EUROPE  163 

speare  are  names  familiar  in  every  modern  household,  as 
are  those  of  Ariosto,  Machiavelli,  Guicciardini,  and  Lo- 
renzo de'  Medici. 

Close  upon  the  collection  of  the  classic  manuscripts  came 
the  invention  of  paper  and  printing,  and  Aldo  Manuzio 
set  up  the  world-famous  Aldine  press  in  Venice.  Froben 
founded  a  similar  business  in  Bale  and  Etiennes  in  Paris. 
From  these  went  out,  from  the  end  of  the  fifteenth  century 
onward,  the  printed  books  which  made  the  earliest  libraries 
of  such  books  in  the  European  world. 

In  this  study  we  are  not  directly  concerned  with  the 
belles-lettres,  the  rhetoric,  the  drama,  or  the  art  of  the 
Renaissance.  Our  treatment  jdeals  chiefly  with  the  revival 
of  the  knowledge  of  the  social  and  political  systems  of 
Greece  and  Rome  and  with  the  spirit  engendered  by  that 
knowledge  towards  the  social  and  political  institutions  of  the 
Middle  Ages.  It  is  not  necessary  for  us  to  restate  the 
features  of  those  systems  and  institutions.  We  know  from 
what  has,  already,  in  sufficient  detail,  been  presented  that 
the  social  and  political  systems  of  ancient  Greece  and 
Rome  were  founded  by  men  on  the  basis  of  human  nature 
and  for  mundane  purposes,  while  the  institutions  of  the 
Middle  Ages  were  held  to  have,  and  believed  to  have,  a 
divine  source  and  an  extramundane  purpose.  The  sover- 
eignty and  authority  of  the  Church,  the  Papacy,  and  the 
Holy  Roman  Empire  were  held  to  be  from  God  over  men 
and  to  be  exercised  for  the  preparation  of  mankind  for  a 
future  world. 

Throughout  the  Middle  Ages  and  especially  the  later 
period  of  this  era,  mankind  manifested  a  continually  grow- 
ing restlessness  and  rebellion  against  the  repression  of  the 
wants,  passions,  enjoyments,  aspirations,  and  purposes  of 
human  and  mundane  life  imposed  by  the  Mediaeval  system 


i64  GOVERNMENT  AND  LIBERTY 

of  ideas  and  institutions.  Entirely  independent  of  the  re- 
vival of  ancient  learning,  men  had  begun  everywhere  to 
exercise  their  faculties  more  freely  in  every  direction.  We 
have  only  to  remember  that  such  men  as  Roger  Bacon, 
Albertus  Magnus,  Bonaventura,  Thomas  Aquinas,  Dante, 
and  Abelard  lived  and  worked  before  the  Latin  manuscripts 
were  unearthed  to  convince  ourselves  that  human  reason 
was  not  extinguished  in  the  twelfth  and  thirteenth  centuries, 
and  that  it  would  have  found  the  way  to  free  European 
mankind  from  the  Mediaeval  system,  in  part  or  in  whole, 
after  that  system  should  have  accomplished  its  great  dis- 
ciplinary work  in  taming  barbarism  and  sensuality  and  in 
fitting  man  for  freer  thought  and  freer  life.  We  must, 
therefore,  look  upon  the  revival  of  classical  learning  more 
as  an  occasion  than  as  a  fundamental  cause  of  the  great 
awakening  of  the  fifteenth  and  sixteenth  centuries.  As  an 
occasion  it  had  truly  a  most  powerful  effect,  especially  in 
the  modification  of  political,  legal,  and  social  ideas  and 
ideals.  The  richness  of  the  city  life  and  of  the,  at  least, 
more  democratic  institutions  of  Greece  and  Rome  furnished 
a  glowing  contrast  to  the  poverty  and  monotony  of  rural 
existence  in  feudal  Europe,  and  the  picture  of  classical 
glory  and  refinement,  of  general  cultivation  and  human 
happiness,  helped  the  European  mind  greatly  to  divest  it- 
self of  its  thraldom  to  a  system  which  indeed  had  had  its 
place  in  human  development  and  had  done  well  its  work 
therefor,  but  which,  in  the  fifteenth  century,  had  accom- 
plished the  great  purpose  of  its  existence  and  must  yield 
the  control  of  European  civilization  to  a  new  system  of 
ideas  and  of  life. 

During  the  first  decades  of  the  classical  revival,  the  en- 
thusiasm for  learning  and  zest  for  effort  in  its  acquirement 
kept  the  movement  within  religious,  moral,  and  civic 


THE  EFFORT  OF  EUROPE  165 

bounds.  No  one  seemed  to  foresee  in  these  earlier  years 
any  danger  in  the  great  awakening  to  the  existing  institu- 
tions of  society  and  Government.  As  I  have  said,  even 
the  Popes  gave  encouragement  to,  and  participated  in, 
the  movement.  When,  however,  the  scholars  went  be- 
yond the  study  of  the  grammar  and  literature  of  the  Classic 
languages  and  began  to  investigate  and  to  teach  the  social, 
civil,  and  political  life,  customs,  and  institutions  of  the 
Classic  peoples,  then  the  danger  point  was  reached,  and 
men  began  to  think  of  the  restoration  of  the  Pantheon  in 
religion  and  the  democratic  Municipality  in  Government. 
The  force  of  this  impulse  came  first,  as  was  natural,  to 
the  Italians.  As  it  advanced  and  spread  it  became  more 
and  more  radical  and  reckless  and  by  the  beginning  of  the 
sixteenth  century  it  had  ruined  Italy  socially,  religiously, 
morally,  and  politically.  Paganism,  immorality,  dissolute- 
ness, lust,  obscenity,  deceit,  and  assassination  ran  riot. 
The  loosening  of  the  bonds  of  Church  and  Empire  had 
opened  the  way  for  tyrants  like  the  Visconti,  the  Sforzas, 
the  Foscari,  the  De'  Medici,  and  the  Aragonesi  to  set  them- 
selves up  in  Milan,  in  Venice,  in  Florence,  and  in  Naples. 
Their  Government  was  indeed  human,  if  by  that  is  meant 
that  it  had  nothing  of  the  divine  in  it.  It  recognized  no 
restraints  either  of  religion,  morals,  or  law,  and  yet  it  was 
necessary  for  curbing  the  anarchy  and  decadence  to  which 
the  triumph  of  the  Renaissance  over  the  Mediaeval  system 
had  at  last  opened  the  way.  These  Governments,  however, 
could  not  solve  the  problem  of  the  new  Italian  unity  and 
of  the  making  of  the  new  Italian  nation.  Pope  Alexander 
VI,  Borgia,  tried  it  from  Rome,  and  Lorenzo  de'  Medici 
from  Florence,  but  with  no  success.  Italy  became,  for 
more  than  three  centuries,  a  prey  for  Germans,  French,  and 
Spaniards  to  struggle  over.  In  Government,  morals,  and 


166  GOVERNMENT  AND  LIBERTY 

religion  the  revival  of  classical  learning  had  had  only  nega- 
tive results.  It  demoralized  the  old  system,  but  from  a 
constructive  point  of  view  it  was  a  failure. 

Its  baleful  influences  now  spread  from  Italy  over  Europe 
as  had  earlier  its  healthful  influences.  The  whole  of  Europe 
seemed  on  the  eve  of  catastrophe,  on  the  eve  of  dissolution 
itself.  But  history  carries  the  cure  for  her  diseases.  At 
the  darkest  moment  two  great  movements  set  in  which 
were  to  save  civilization  from  extinction  and  set  it  upon 
a  new  road  of  progress.  These  movements  were  the  Ref- 
ormation and  the  Counter-Reformation. 

A  thorough  study  of  the  Reformation  must  contemplate 
it  from  at  least  four  points  of  view,  viz.:  the  discipline  of 
the  Clergy,  the  theological  doctrine  of  the  Church,  the 
Government  of  the  Church,  and  the  philosophy  of  the 
movement  as  a  forward  step  in  the  world's  progress.  As 
we  have  seen,  the  effect  of  the  Feudal  System  upon  the 
Church  had  been  to  change  the  higher  Clergy  into  secular 
Lords,  or  rather  to  put  secular  Lords  into  the  higher 
Church  offices,  where  they  still  pursued  their  lives  of  sport, 
warfare,  luxury,  and  dissoluteness.  By  the  middle  of  the 
fifteenth  century  the  condition  of  the  Church  everywhere 
had,  in  so  far  as  the  moral  character  of  the  Clergy  was  con- 
cerned, become  deplorable.  The  reforms  of  Gregory  VII 
had  run  their  course  and  ceased  to  have  further  influence, 
and  the  Renaissance  had,  as  we  have  seen,  finally  contrib- 
uted largely  to  the  demoralization  of  the  whole  society. 
The  Pope  at  one  end,  and  the  lower  Clergy  at  the  other 
end,  of  the  hierarchic  organization  had  been  dragged  down 
and  held  down  by  the  power  of  the  Prelates,  and  morally 
the  world  seemed  on  the  very  verge  of  dissolution.  The 
Popes  and  the  better  part  of  the  Clergy,  that  part  which 
was  not  simply  the  secular  nobility  in  clerical  office,  had 


THE  EFFORT  OF  EUROPE  167 

striven  again  and  again  to  check  the  downward  course  and 
to  reform  the  morals  of  the  Ecclesiastics.  This  was  the 
chief  meaning  of  the  creation  and  work  of  the  Monastic 
Orders,  the  Benedictines  in  the  early  centuries,  and  the 
Franciscans,  Dominicans,  and  the  Brethren  of  St.  Jerome 
in  the  fourteenth  century.  For  a  little  while  each  of  these 
new  creations  succeeded  in  stemming  somewhat  the  de- 
cadence in  clerical  manners  and  morals,  but  soon  each  in 
turn  gave  way  and  was  dragged  along  by  the  general  cur- 
rent. 

Three  great  Councils  of  the  Church,  that  at  Pisa  in  1409, 
that  at  Constance  in  1414,  and  that  at  Bale  in  1431,  the 
last  two  usually  considered  ecumenical,  undertook  to  deal 
with  this  great  question  of  the  morals  and  discipline  of  the 
Clergy,  but  the  position  of  the  Council  itself  in  the 
hierarchy  of  ecclesiastical  authority  was  not  then  fixed. 
Whether  it  was  superior  to  the  Papal  power  and  had  juris- 
diction over  the  Popes  or  not  was  a  question  still  in  dispute. 
The  great  Chancellor  de  Gerson  of  the  University  of  Paris, 
and  the  bold  and  brilliant  Archdeacon  of  Bayeux,  Nicholas 
de  Clemenges,  defended  the  proposition  that  the  ecumenical 
Council  was  the  supreme  power  in  the  Church,  but  the 
Popes  and  the  Italian  Prelates  generally  sustained  the 
Papal  claim  to  the  highest  authority.  The  Councils  them- 
selves were  thus  split  upon  this  fundamental  subject,  and 
their  ability  to  consider  other  things,  not  to  speak  of  their 
ability  to  accomplish  anything,  was  thus  greatly  weak- 
ened, practically  nullified. 

There  is  no  doubt,  however,  that  the  active  and  continued 
agitation  during  the  fourteenth  and  fifteenth  centuries  in 
the  bosom  of  the  Church  itself  resulted  in  considerable 
improvement  of  the  morals  of  the  Clergy,  and  it  must  not 
be  forgotten,  in  this  connection,  that  the  blame  for  the  de- 


1 68  GOVERNMENT  AND  LIBERTY 

plorable  situation  rested  more  upon  the  Prelates,  who  were 
in  fact  feudal  Barons  instead  of  real  Bishops  and  Abbots, 
than  upon  the  Popes  and  the  lower  Clergy,  and  that,  as 
is  always  the  case,  the  badness  of  the  situation  was  exag- 
gerated by  the  reformers.  The  fact  is  that  the  time  had 
come  when  the  whole  system,  political  and  ecclesiastical, 
of  the  Middle  Ages  was  approaching  a  crisis  in  the  develop- 
ment of  the  world's  history,  and  that  the  men  of  the  age 
were  themselves  only  half  conscious,  if  conscious  at  all, 
of  the  forces  which  were  driving  them  onward. 

The  Reformation  demanded  a  complete  purification  of 
the  morals  of  the  Clergy,  and  a  complete  separation  of  the 
functions  of  Ecclesiastic  and  Feudal  Lord.  How  this  could 
be  accomplished  without  surrendering  the  lay  fiefs  held 
by  the  Ecclesiastics  was  difficult  to  see.  In  fact  it  was 
about  impossible.  It  was  also  difficult  to  see  how  the  morals 
of  the  Clergy  could  be  purified  under  the  rule  of  celibacy. 
The  Ecclesiastics  must  be  allowed  to  marry  and  have 
homes  and  families  in  order  to  prevent  them  from  the 
commission  of  sexual  vice.  These  two  demands  of  the 
Reformation  in  regard  to  the  discipline  of  the  Clergy  went 
far  beyond  the  plans  for  the  improvement  of  that  dis- 
cipline entertained  by  the  Church  itself,  and  it  soon  became 
manifest  that  they  could  not  be  realized  in  the  bosom  of  the 
Church,  but  required  separation  from  it. 

The  necessity  for  the  Reformation  from  the  point  of 
view  of  theological  doctrine  came  more  slowly  to  conscious- 
ness. The  theology  of  the  Church  itself  was  somewhat 
unfixed  and  unclear  until  the  Council  of  Trent  in  the  mid- 
dle of  the  sixteenth  century  settled  its  most  fundamental 
points.  However,  there  was  continual  opposition  to,  and 
dissatisfaction  with,  the  ever-increasing  elaboration  and 
magnificence  of  the  ritual,  and,  in  less  degree  perhaps,  to 


THE  EFFORT  OF  EUROPE  169 

and  with  such  doctrines  as  transubstantiation  and  baptismal 
regeneration,  and  above  all  the  doctrine  of  indulgences. 
It  was  this  doctrine,  as  is  well  known,  which  provoked  the 
indignation  of  Luther,  and  against  which  his  famous  theses 
of  1517  were  hurled.  It  was,  however,  only  in  the  German- 
speaking  lands,  or  at  least  chiefly  there,  that  the  Reforma- 
tion as  a  change  in  theological  doctrines  played  a  great 
part.  Elsewhere  it  was  regarded  more  from  the  other 
points  of  view  or,  at  least,  from  some  of  the  other  points 
of  view  which  I  have  mentioned.  It  must  not  be  under- 
stood, however,  that  in  Germany  it  was  regarded  from  the 
doctrinal  point  of  view  only.  Quite  on  the  other  hand,  in 
Germany,  more  than  anywhere  else,  the  discipline  of  the 
Clergy,  Church  Government,  and  the  general  philosophy 
of  the  movement  entered  also  into  consideration,  contro- 
versy, and  the  ultimate  adjustment. 

The  matter  of  doctrine  is  not,  however,  of  any  great  im- 
portance to  the  subject  with  which  >  we  are  concerned  in 
this  work.  It  is  the  question  of  Church  Government,  the 
question  of  the  relation  of  the  Church  to  the  civil  Govern- 
ment, and  the  question  of  the  general  philosophical  signifi- 
cance of  the  movement  as  modified  by  the  Reformation, 
which  constitute  our  problem.  The  Reformation  demanded 
and  effected  a  very  great  change  in  the  Government  of  the 
Church  itself,  and  in  the  relation  of  that  Government  to 
civil  Government,  both  in  the  countries  where  it  produced 
a  complete  separation  of  the  religious  communities  from  the 
Roman  Catholic  organization  and  in  those  where  the  sepa- 
ration was  not  complete. 

In  the  first  place,  the  divine  origin  of  the  Papal  suprem- 
acy and  of  the  temporal  power  of  the  Papacy  was  denied 
and  disproved,  and  the  historical  steps  in  these  develop- 
ments were  laid  bare.  As  usual,  men  went  too  far  in  de- 


i  yo  GOVERNMENT  AND  LIBERTY 

nouncing  the  Papacy  and  its  temporal  power  as  frauds. 
While  they  were,  indeed,  shown  not  to  be  of  divine  origin 
in  the  then  understood  sense,  they  sprang  out  of  the  neces- 
sities of  history  and  civilization,  and  were  in  that  sense 
providential.  The  true  philosophical  way  of  considering 
those  questions  would  have  been  to  have  tested  the  legiti- 
macy and  the  value  of  those  institutions  from  the  point  of 
view  of  their  service  to  the  civilization  and  progress  of 
mankind  and,  if  it  should  be  shown  that  they  had  out- 
lived their  usefulness,  still  to  have  buried  them  with  decency 
and  honor  for  what  they  had  rendered  of  worth  in  the  past. 
But  the  Mediaeval  mind,  and  more  especially  the  Renais- 
sance mind,  did  not  work  that  way.  When  an  institution 
claiming  divine  origin  was  shown  to  be  of  human  origin, 
it  was  immediately  denounced  as  a  fraud,  to  be  done  to 
death  and  cast  unto  the  dogs.  Such  exaggeration  of  view 
seems  to  be  necessary,  however,  in  order  to  stir  men  up  to 
the  revolutionary  temper.  But  it  generally  leads  men  too 
far  in  their  deeds  and  provokes  reaction. 

It  did  so  in  the  case  of  the  Reformation,  as  is  well  known. 
What  is  termed  in  history  the  Jesuit  Reaction  was  the 
natural  result  of  the  excesses  of  the  Reformation.  The 
Reformation  virtually  reduced  the  Roman  Papacy  to  a 
supremacy  in  Italy  only.  The  course  of  the  Reformation 
in  the  complete  sense  which,  as  to  Government,  it  ran  in 
North  Germany,  Scandinavia,  the  Netherlands  and  Eng- 
land was,  indeed,  halted  in  Spain,  France,  Austria,  and 
Poland  by  the  Counter-Reformation,  brought  about  by 
the  Council  of  Trent  and  the  Jesuit  Order,  but  not  even  in 
these  countries  did  the  Papacy  and  the  Roman  Curia  ever 
regain  the  supremacy  over  the  European  Church  enjoyed 
by  them  before  the  Reformation.  The  idea  that  the 
Catholic  Church  within  a  given  nation  or  state  had  a  cer- 


THE  EFFORT  OF  EUROPE  171 

tain  independent  existence  and  authority  over  against  the 
Pope  and  the  Roman  Curia  sprang  up  and  made  its  way 
with  ever-increasing  clearness  and  force  among  all  these. 

The  results  of  this  idea  were  manifold.  First,  it  seemed  to 
require  the  organization  of  national  Church  Councils  along- 
side of  the  ecumenical  Council.  Second,  it  seemed  to  re- 
quire some  limitation  upon  the  powers  of  the  ecumenical 
Council  in  reviewing  the  decisions  and  acts  of  the  national 
Councils.  Third,  it  seemed  to  require  some  national  veto 
upon  the  promulgation  of  Papal  edicts  and  orders  within 
the  jurisdiction  of  the  several  national  Church  organizations. 
Fourth,  it  seemed  to  require  some  national  power  for  the 
revision  of  Papal  appointments  within  such  jurisdiction. 
The  very  fact  of  the  existence  of  such  ideas  shows  that  the 
nations  were  already  forming  themselves  through  a  fusion 
of  the  Feudal  classes  in  the  different  natural  territorial 
divisions  of  Europe,  and  that  a  national  consciousness  of 
rights  and  wrongs  and  a  national  consensus  of  opinion  were 
being  developed. 

From  the  early  appearance  of  such  impulses,  however, 
to  their  full  effect  in  the  organization,  religious  and  politi- 
cal, of  the  nations  was  a  long  call.  The  long  struggle  of 
the  classes,  developed  under  the  Feudal  and  Ecclesiastical 
organization  of  European  society,  was  yet  to  be  passed 
through.  The  lower  classes  must  find  a  point  of  unity 
around  which  to  rally  in  their  effort  to  free  themselves  from 
the  local  tyranny  of  Baron  or  Bishop  or  both.  During  this 
period,  the  powers  of  the  newly  developing  National 
Churches  against  the  former  unlimited  supremacy  of  Rome 
must  be  lodged  in  some  powerful  hand  in  each  of  these 
growing  nations.  In  the  struggle  of  the  Feudal  classes, 
this  could  not  be  any  Congress  or  States  General.  It 
could  not  even  be  the  National  Ecclesiastical  Council  itself. 


172  GOVERNMENT  AND  LIBERTY 

It  must  be  the  ever  present,  always  ready,  universally 
commanding  Royal  hand.  The  King  must  approve  the 
decrees  of  the  National  Church  Councils  for  their  validity. 
The  King  must  allow  or  deny  appeals  to  Rome  from  the 
decrees  and  decisions  of  the  Church  and  Clergy  within  his 
national  jurisdiction.  The  King  must  approve  or  forbid 
the  publication  of  the  decrees  of  the  Pope  and  the  Curia 
as  authoritative.  And  the  King  must  ratify  or  reject  the 
nominations  made  by  the  Pope  or  the  choice  made  by  the 
Chapters  to  ecclesiastical  office.  This  was  the  new  rela- 
tion of  the  Church,  or  Churches,  produced,  or  at  least  es- 
tablished fully,  by  the  Reformation  in  those  states  in  which 
the  authority  of  the  Pope,  the  Roman  Curia  and  the 
ecumenical  Council  was  still  acknowledged.  This  was  the 
new  situation  in  Spain,  France,  Poland,  and  Austria,  and 
after  the  Peace  of  Westphalia  in  the  South  German  prin- 
cipalities. 

Where  the  Reformation  caused  the  entire  severance  of 
the  Church  communities  from  the  supremacy  of  the  Pope 
and  the  Curia,  the  change  in  the  Government  of  the  Church 
was  much  more  radical.  This  was  the  case  chiefly  in 
England,  the  Scandinavian  Kingdoms,  the  Netherlands, 
the  North  German  principalities,  and  in  some  of  the  Swiss 
Cantons.  In  the  first  of  these,  England,  the  movement 
proceeded  more  from  governmental  considerations,  in  the 
others  more  from  doctrinal.  The  English  King,  Henry 
VIII,  at  first  took  decided  ground  against  the  Lutheran 
doctrines.  In  1521  he  caused  to  be  published  a  book 
written  by  himself  in  answer  to  Luther's  treatise  The 
Babylonian  Captivity.  The  King's  book  was  entitled  The 
Defense  of  the  Sacraments.  It  ran  through  several  editions 
and  was  translated  into  several  Continental  languages. 
The  Pope  was  so  greatly  pleased  with  the  King's  loyalty 


THE  EFFORT  OF  EUROPE  173 

that  he  conferred  upon  him  the  title  of  "  Defender  of  the 
Faith."  Very  soon,  however,  political  and  marital,  not  to 
say  sensual,  motives  induced  the  King  to  enter  upon  a 
course  which  was  to  land  him  upon  the  side  of  the  Re- 
formers. He  desired  to  divorce  himself  from  his  Queen, 
Catherine  of  Aragon,  and  marry  one  of  her  pretty  ladies 
in  waiting,  Anne  Boleyn.  The  controversy  between  the 
King  and  the  Pope,  Clement  VII,  of  the  powerful  house 
of  Medici,  continued  with  varying  features  and  fortunes 
through  years.  At  length  the  Pope  made  the  mistake, 
from  the  point  of  view  of  the  interest  of  the  Holy  See,  of 
appointing  Cranmer,  Archbishop  of  Canterbury  and  Pri- 
mate of  England,  as  his  Legate  in  England. 

Cranmer,  as  representative  of  the  Pope,  immediately 
proceeded  to  annul  the  King's  marriage  with  Catherine  and 
to  confirm  his  union  with  Anne  Boleyn.  The  Pope  repu- 
diated Cranmer's  act  and  demanded  of  the  King  that  he 
should  take  back  Queen  Catherine  as  his  lawful  spouse, 
and  should  cease  his  attempts  to  rid  himself  of  her.  The 
Parliament  stood  by  the  King,  and  in  November  of  1534, 
passed  the  Act  of  Supremacy,  declaring  the  King  to  be  the 
supreme  head  of  the  Church  of  England,  and  investing 
him  with  the  power  to  reform  the  Church.  After  this  the 
King  of  England  could  even  more  truthfully  boast  that  he 
was  the  Church,  than  could  Louis  XIV  that  he  was  the 
state.  Henry  VIII  proceeded  to  use  his  powers  as  head 
of  the  Church  in  every  direction,  to  prohibit  any  exercise 
of  Papal  power,  to  control  the  assembly  and  the  decisions  of 
National  Church  Councils,  to  appoint  the  higher  Ecclesi- 
astics, and,  most  significant  of  all,  to  confiscate  the  Church 
properties  and  with  them  to  create  a  new  House  of  Lords, 
quite  subservient  to  his  will,  and  inasmuch  as  the  House 
of  Lords  was  at  that  time  virtually  the  Parliament,  the 


174  GOVERNMENT  AND  LIBERTY 

Parliament  became  in  substance  the  King's  Council  of  lay 
and  Ecclesiastical  appointees. 

Nowhere  else  did  secular,  political,  and  selfish  reasons 
for  the  Reformation  prevail  to  the  same  extent  as  in  Eng- 
land. They  were  not  entirely  absent,  however,  anywhere, 
and  the  political  results  were  practically  the  same  every- 
where, except  perhaps  in  the  relatively  unimportant  Can- 
tons of  Switzerland.  In  the  Scandinavian  and  German 
States  the  Princely  heads  of  these  States  became  the  heads 
of  the  Church  within  these  States.  The  Princes  succeeded 
to  the  Papal  supremacy,  and  the  episcopal  powers  were 
exercised  by  Consistories  or  Councils  in  each  diocese,  whose 
members  were  appointed  by  the  Princes  respectively. 

The  Counter-Reformation  and  the  propaganda  of  the 
Jesuit  Order  provoked  the  conflict  of  arms  known  as  the 
Thirty  Years'  War,  but  the  results  of  the  struggle  were  little 
more  than  a  confirmation  of  the  conditions  existing  at  its 
beginning.  A  few  of  the  German  states  were  brought  back 
under  the  supremacy  of  the  Pope,  and  France  and  Poland 
were  purged  of  Protestantism.  Protestantism  maintained 
its  existence,  but  Catholicism  was  stronger  in  1650  than  in 
1600.  This  latter  statement  must  not,  however,  be  taken 
as  meaning  that  the  Pope  and  the  Roman  Curia  regained 
the  Mediaeval  powers  which  they  had  exercised  everywhere 
in  Europe  before  the  outbreak  of  the  Reformation.  In- 
stead of  the  Universal  Roman  Catholic  Church,  there  ex- 
isted after  1650  the  National  Catholic  Churches  of  Spain, 
France,  Austria,  Poland,  etc.,  more  subject  to  the  Royal 
supremacy  than  to  the  Papal,  not,  however,  so  completely 
as  in  England.  They  were  also  further  distinguished  from 
the  condition  in  England  in  that  the  change  in  the  govern- 
mental relations  to  the  Roman  See  did  not  lead,  as  in  Eng- 
land, to  any  reform  worth  mention  in  doctrine. 


THE  EFFORT  OF  EUROPE       175 

The  Crusades,  the  development  of  the  Free  Cities,  the 
Renaissance,  and  the  Reformation  had  thus  demoralized 
and  disrupted  Mediaeval  society,  and  had  overthrown  the 
Mediaeval  ideas  of  Church  and  Government.  I  will  not 
say  Church  and  state,  as  the  usual  phrase  goes,  because  men 
had  not  yet  thought  out  the  conception  of  the  state  as  some- 
thing more  ultimate  and  fundamental  than  Church  or  Gov- 
ernment, something  which  might  finally  control  both  Church 
and  Government  and  reconcile  them  with  each  other. 

Upon  the  foundation  of  this  demoralized  and  disrupted 
society  the  national  Monarchies  now  arose,  as  the  bearers 
of  the  new  national  spirit.  First,  in  Spain,  with  union  of 
the  thrones  of  Castile  and  Aragon  by  the  marriage  of  Fer- 
dinand of  Aragon  with  Isabella  of  Castile  in  the  year  1469. 
They  were  only  Crown  Prince  and  Crown  Princess  when 
married,  and  did  not  unite  the  two  countries  under  their 
own  Royal  authority  until  1479.  They  became  rulers 
first  in  Castile  in  1474,  and  began  there  the  governmental 
reforms  looking  to  the  centralization  of  all  governmental 
power  in  the  Crown.  The  instruments  made  use  of  by 
these  gifted  rulers  were,  as  I  have  pointed  out,  found  ready 
at  hand  in  the  demoralized  society.  First,  the  Free  Cities 
of  Castile  had  already  formed  a  league  for  the  protection 
of  their  trade  and  commerce  against  the  robber  Barons, 
called  the  Holy  Hermandad.  This  league  had  a  stand- 
ing professional  Army  of  two  thousand  or  more  cavalry- 
men, a  well-schooled,  capable  gensdarmerie.  This  force 
was  intrusted  to  the  commandership  of  King  Ferdinand, 
and  a  permanent  stamp-tax  was  allowed  him  for  its  support. 
This  body  became  the  nucleus  of  a  standing  professional 
Army,  and  this  Royal  impost  the  basis  of  an  independent 
system  of  Royal  taxation.  The  King  was  thus  recognized 
by  the  Free  Cities  as  the  protector  of  the  common  people 


176  GOVERNMENT  AND  LIBERTY 

not  only  against  foreign  attack,  but  also  against  the  rapac- 
ity of  the  Nobles.  The  new  Royalty  manifested  thus, 
from  the  outset,  its  democratic  character.  Then  King  Fer- 
dinand secured  the  grand-mastership  of  the  three  orders 
of  Castilian  Knighthood,  St.  lago,  Calatrava,  and  Alcan- 
tara. He  thus  blocked  the  recruitment  of  military  strength 
by  the  higher  Nobles  from  the  ranks  of  the  Knights,  and 
made  of  the  Knights  an  instrument  for  strengthening  the 
Royal  power  against  the  greater  nobility.  As  the  Knights 
were  the  only  military  organization  from  which  the  great 
Nobles  had  obtained  soldiers,  they  were  now  shorn  of  all 
military  strength,  and  the  entire  military  power  was  con- 
centrated in  the  King's  hands.  Finally,  through  the  loyalty 
of  the  great  Cardinal  Ximenes  and  the  Grand  Inquisitor 
Torquemada,  King  Ferdinand  was  able  to  make  the  Church 
in  Spain  substantially  the  Spanish  National  Church,  and  to 
limit  the  powers  of  the  Papacy  and  the  Roman  Curia  over 
it  to  certain  definite  functions  under  Royal  consent.  The 
Inquisition  was  fashioned  into  a  powerful  political  instru- 
ment for  the  purpose  of  controlling  the  great  Nobles  by 
secret  summary  processes  and  disposing  of  them  when  they 
showed  themselves  dangerous  to  the  Royal  authority. 
The  Church  became  thus  an  instrument  of  Government,  a 
most  powerful  instrument,  in  the  hands  of  the  King.  Its 
democratic  power  was  added  to  that  of  the  Free  Cities,  and 
both  were  grasped  and  wielded  by  the  able  Monarch  to 
subject  the  Feudal  nobility  to  the  arbitrary  power  of  the 
Crown.  Thus  far  King  Ferdinand  brought  the  develop- 
ment of  the  Monarchy.  His  grandson  and  successor, 
Charles,  known  in  history  as  Charles  V,  the  Emperor,  was 
barely  able,  through  the  powerful  services  of  Cardinal 
Ximenes,  who  was  great  in  war  as  well  as  peace,  to  hold 
the  ground.  Philip  II,  however,  Charles's  son,  built  further. 


THE  EFFORT  OF  EUROPE 


177 


All  students  of  Spanish  history  know  that  there  existed 
throughout  Spain  in  the  middle  of  the  sixteenth  century 
codes  of  liberties  and  privileges  of  all  classes  in  the  society 
known  as  Fueros — we  would  call  them  now  Bills  of  Rights 
and  Immunities — and  that  these  liberties  and  privileges 
were  interpreted  and  upheld  against  the  arbitrary  acts 
and  encroachments  of  Government  by  the  Judicial  tri- 
bunals, which,  in  each  Kingdom  or  Principality,  were  under 
the  supervision  and  control  of  a  personage  called  the  Grand 
Justiciar.  The  Justiciar  was  chosen  originally  by  the 
Mediaeval  Estates  General,  the  office  becoming  in  some 
cases  hereditary,  following  the  general  principle  in  this  re- 
spect of  the  Feudal  System.  Philip  II  saw  in  this  institu- 
tion of  the  Justiciar  and  the  tribunals  subject  to  his  super- 
vision and  control  the  chief  remaining  obstacle  to  the  abso- 
lutism of  the  Crown.  He  brought  his  whole  power  and 
tact  against  it,  not  hesitating  to  employ  the  secret  agency 
of  the  Inquisition.  He  finally  succeeded  in  putting  the 
Grand  Justiciar  to  death,  in  making  his  successors  Royal 
appointees  subject  to  dismissal  at  any  time,  in  bringing  the 
entire  administration  of  justice  under  Royal  control,  and  in 
abolishing  those  Fueros  that  stood  in  the  way  of  his  abso- 
lute power.  With  this  the  last  obstacle  to  his  absolutism 
was  overcome,  and  at  the  close  of  the  sixteenth  century  the 
Spanish  Monarchy  had  reached  the  point  where  the  King 
was  in  reality  the  Sovereign  over  the  whole  Spanish  peo- 
ple, that  is,  over  the  whole  population  of  the  Iberian  pen- 
insula. The  classes  of  the  Mediaeval  society  were  now 
fused  into  the  one  subject  body  of  the  Hapsburg  Monarch, 
who  had  either  destroyed  or  reduced  to  his  absolute  con- 
trol every  institution,  power,  or  custom  which  might  exert 
any  limitations  upon  his  own  will  and  pleasure. 

We  must  date  the  beginning  of  the  restoration  of  the 


178  GOVERNMENT  AND  LIBERTY 

Monarchy  and  of  the  development  of  absolute  Govern- 
ment in  France  from  the  reign  of  Louis  IX,  Saint  Louis,  as 
he  was  fondly  termed  by  his  people,  i.  e.,  from  the  second 
and  third  quarters  of  the  thirteenth  century.  Saint  Louis 
was,  so  to  speak,  the  first  of  the  lawyer-Kings  of  France. 
He  sought  to  substitute  the  general  rule  of  the  Roman 
Law  for  the  varied  Feudal  customs  of  the  different  parts  of 
the  Kingdom.  He  absolutely  forbade  the  Mediaeval  prac- 
tises of  self-help  in  the  settlement  of  internal  difficulties 
of  a  judicial  nature,  and  substituted  therefor  the  jurisdic- 
tion of  the  Royal  Courts,  the  so-called  Parliaments.  By 
such  means  he  curbed  the  feudal  Lords  and  subjected  them 
to  the  authority  of  the  Crown.  He  also  made  use  of 
Lawyers  instead  of  feudal  Barons  and  civil  officials.  Al- 
though of  a  deeply  religious  nature  and  also  a  good  Church- 
man, he  would  not  acknowledge  the  claims  of  the  Church 
to  supremacy  over  the  King  nor  of  the  Pope  to  supremacy 
over  the  Church  in  France.  He  appointed  the  Bishops  of 
the  Church  in  France,  and  he  would  not  allow  appeals  to 
Rome  on  any  secular  matter,  and  forbade  all  exactions  of 
revenue  from  the  Church  in  France  by  the  Popes  and  the 
Roman  Curia,  except  under  Royal  consent  and  approval. 

Saint  Louis's  grandson,  Philip  IV,  le  Bel,  carried  this  de- 
velopment further.  Philip  was  also  a  lawyer-King,  more 
pronounced  than  Saint  Louis.  He  had  none  of  his  grand- 
father's religious  mysticism,  but  was  logical,  cold,  and  cal- 
culating. With  his  Roman  lawyers  he  worked  out  clear 
distinction  between  the  secular  and  the  spiritual  powers, 
and  confined  the  Ecclesiastics  rigidly  to  the  exercise  of  the 
latter.  He  also  insisted,  with  much  success,  in  subjecting 
the  Feudal  Lords  tp  the  jurisdiction  of  the  Royal  Law-Courts. 

He  expelled  the  Bishops  and  other  Clergy  from  seats  in  the 
Parliament,  the  Royal  Law-Courts,  and  followed  the  policy 


THE  EFFORT  OF  EUROPE  179 

of  his  grandfather  in  appointing  only  lawyers  to  civil  office. 
He  fixed  the  supreme  Law-Court  of  appeals  at  Paris,  and 
made  it  the  great  central  organization  for  the  registering 
of  the  laws  and  the  administration  of  justice.  From  his 
reign  dates  the  principle  that  laws  to  be  valid  must  be  regis- 
tered by  the  Parliament  of  Paris.  Even  the  edicts  of  the 
Crown  must  be  registered  before  they  were  law.  Conflict 
between  the  Crown  and  Parliament  over  this  point  was 
avoided  by  the  custom  of  the  Crown  to  issue  no  edict  not 
beforehand  advised  and  approved  by  the  Crown  lawyers. 

The  attitude  of  the  King  toward  the  Papacy  brought  on, 
at  the  end  of  the  thirteenth  and  the  beginning  of  the  four- 
teenth centuries,  the  historic  struggle  with  Pope  Boniface 
VIII.  Philip  undertook  to  levy  contributions  upon  the 
Church  property  in  France,  and  in  the  year  1296  Boniface 
forbade  the  Clergy  generally  to  pay  any  aid,  contribution, 
or  impost  to  the  civil  power  and  threatened  any  Prince 
who  should  undertake  to  require  the  same  from  the  Clergy 
with  excommunication.  The  King  took  this  as  aimed  spe- 
cially at  himself,  and  answered  it  with  an  ordinance  for- 
bidding the  export  of  gold,  silver,  jewels,  or  anything  of 
value  from  France  without  the  Royal  consent.  Rejoinder 
and  then  surrejoinder  followed  this  answer  until  at  last 
the  Pope  made  the  Mediaeval  assertion  that  the  Pope  was 
superior  to  all  Kings,  and  the  King  declared  that  in  things 
temporal  the  King  was  without  any  superior. 

This  controversy  and,  finally,  conflict  led  to  two  world- 
historic  results.  The  first  was  the  assembly  in  1302  of  the 
Etats-Generaux,  the  Estates  General  of  France,  and  the 
second  was  the  capture  of  the  Pope  and  his  confinement 
at  Avignon.  For  the  first  time  in  the  history,  of  France, 
upon  the  call  of  the  King,  the  Nobles,  Prelates,  and  rep- 
resentatives of  the  Cities  met  in  one  place,  not  in  one  body, 


i8o  GOVERNMENT  AND  LIBERTY 

but  in  three  bodies,  to  consider  the  grievances  of  their 
King  and  country  against  the  Pope.  Here  was  the  oppor- 
tunity for  the  organization  of  a  supreme  lawmaking  body 
like  the  English  Parliament,  but  no  such  development  fol- 
lowed. Each  body  acted  separately,  and  while  the  Nobles 
and  the  burghers  adopted  addresses  favorable  to  the  King's 
side,  the  Clergy  took  a  somewhat  non-committal  position, 
and  prayed  to  be  allowed  to  go  to  Rome  to  attend  the 
Council  summoned  by  the  Pope.  The  Pope  at  first  replied 
mildly,  but,  encouraged  by  the  victory  of  the  Flemish 
burghers  over  the  French  King  in  the  battle  at  Courtrai, 
where  thousands  of  the  French  nobility  perished  miserably 
in  a  concealed  ditch,  and  misunderstanding  entirely  the 
effect  of  this  apparent  disaster  upon  the  development  of 
the  Royal  power,  he  issued  in  November  of  1302  the  cele- 
brated pronunciamento  Called  in  history  the  "Unam 
Sanctam,"  in  which  the  Mediaeval  doctrine  of  the  supremacy 
of  the  spiritual  over  the  temporal  in  all  things,  and  the 
immunity  of  the  spiritual  against  the  temporal  in  every 
respect,  was  again  proclaimed,  and  then  demanded  of  the 
King,  under  threat  of  excommunication,  that  he  change 
his  conduct  toward  the  Church  and  the  Pope. 

This  Bull  created  a  violent  commotion  in  France,  and 
the  King's  chief  lawyer,  Nogaret,  went  to  Italy  and  in 
conspiracy  with  the  Pope's  chief  Italian  enemies,  the  Co- 
lonnas,  made  the  Pope  a  prisoner  at  Anagni,  whither  the 
Pope  had  gone  in  the  summer  of  1303  to  escape  the  heat  of 
Rome.  The  outrages  and  hardships  heaped  .upon  the  old 
man  caused  his  death.  His  successor,  Benedict  IX,  lived 
but  a  few  months,  and  the  King  now  carried  out  his  plan 
for  transferring  the  seat  of  the  Papacy  from  Rome  to  a 
French  city.  He  secured  the  election  as  Pope  of  Bertrand 
de  Goth,  Archbishop  of  Bordeaux,  and  laid  heavy  condi- 


THE  EFFORT  OF  EUROPE 


181 


tions  upon  him,  among  them  was  said  to  have  been  the 
transfer  of  the  Papal  residence  to  Avignon,  the  recognition 
of  the  right  of  the  King  to  take  for  five  years  a  tithe  of  the 
products  of  the  Church  property  in  France,  and  his  con- 
sent to  the  destruction  by  the  King  of  the  Templar  Order 
of  Knights.  The  new  Pope,  who  took  the  title  of  Clement 
V,  was  consecrated  at  Lyons,  and  after  wandering  about 
in  France,  really  as  a  prisoner  of  the  King,  for  a  number 
of  years,  fixed  his  permanent  residence  at  Avignon  in  the 
year  1309,  which  city  remained  the  seat  of  the  Papacy  until 
1378,  and  of  the  French  Anti-Popes  for  forty  years  longer. 
The  Pope  and  the  Church  became  now  an  instrument  in 
the  hands  of  the  French  King. 

The  Bang  now  insisted  upon  the  consent  of  the  Pope  to 
the  destruction  of  the  Templars,  a  powerful  and  rich  Order 
of  ecclesiastical  Knights,  so  to  speak,  originating  during 
the  period  of  the  Crusades,  located  first  in  Jerusalem,  but 
after  the  Turkish  advance  into  Palestine  and  Asia  Minor, 
withdrawing  to  Europe,  especially  to  France,  and  to  Paris, 
where  they  established  the  great  fortress  called  the  Temple 
directly  opposite  the  palace  of  the  Louvre.  The  King 
charged  them  with  all  sorts  of  crimes  and  vices,  most  of 
which  charges  were  undoubtedly  false.  They  were  very 
rich  and  he  wanted  to  despoil  them,  and  that  was  enough. 
The  Pope  yielded,  the  Order  was  destroyed,  and  many  of 
its  members  put  to  death,  and  its  vast  treasure  went  into 
the  King's  coffers. 

The  King  lived  but  a  short  while  to  enjoy  his  triumph. 
He  died  sorrowfully  in  the  year  1314.  He  had  builded, 
however,  better  than  he  himself  knew.  The  opposition  of 
both  Nobles  and  Clergy  to  the  development  of  the  sover- 
eign nation  had  been  so  far  overcome  by  him  as  to  make 
certain  that  the  Middle  Age  in  European  civilization  had 


i82  GOVERNMENT  AND  LIBERTY 

passed.  Three  sons  followed  him  and  each  other  on  the 
throne,  all  ruling  but  fourteen  years  and  leaving  only 
daughters  behind,  and  the  question  now  came  forward  for 
definite  solution  whether  a  woman  could  occupy  the  throne 
of  France.  No  woman  ever  had  done  so,  and  so  the 
Barons  and  the  lawyers  decided  that  no  woman  was  eligi- 
ble thereto.  This  threw  the  inheritance  upon  Philip  of 
Valois,  son  of  a  brother  of  King  Philip  le  Bel. 

The  fact  that  the  Barons  had  assumed  so  large  a  part 
in  deciding  this  question  seemed  at  first  to  restore  them  to 
a  more  commanding  place  than  they  had  occupied  during 
the  reign  of  Philip  le  Bel,  but  the  hostility  of  Edward  III, 
King  of  England,  provoked  by  this  decision,  who  claimed 
through  his  mother,  a  daughter  of  King  Philip  le  Bel,  the 
throne  of  France,  plunged  France  into  the  hundred  years' 
war  with  England,  the  first  effect  of  which  was,  indeed,  to 
bring  about  a  long  period  of  demoralization  and  almost 
anarchy  in  France,  but  which  contributed  in  the  long  run 
to  the  more  complete  suppression  of  feudal  and  ecclesias- 
tical independence,  the  more  pronounced  development  of 
the  nation,  and  the  more  unlimited  power  of  the  King. 

Passing  over  the  long  period  of  confusion,  we  come  to 
the  closing  period  of  the  war  and  the  triumph  of  France 
through  the  uprising  of  the  nation  under  the  reign  of  Charles 
VII,  and  to  the  following  period  of  the  final  suppression 
of  the  revolting  Nobles  by  Louis  XI.  The  continuous  con- 
dition of  war  had  produced  a  large  class  of  professional 
soldiers,  and  out  of  these  was  now  to  be  constituted  a 
standing  Army  subject  solely  to  the  King.  An  assembly 
of  the  chief  men  of  all  classes  loyal  to  the  King  was  held 
at  Orleans  in  the  year  1438,  at  which  it  was  agreed  that 
the  King  should  select  from  this  well- trained  fighting  mate- 
rial a  sufficient  number  of  the  best  men  to  form  the  nucleus 


THE  EFFORT  OF  EUROPE       183 

of  a  standing  Army  of  professional  soldiers,  and  that  he 
should  have  power  to  levy  a  tax  by  his  own  order  suffi- 
cient to  maintain  them.  The  King  immediately  selected 
some  ten  thousand  men  from  among  these  trained  fighters 
and  formed  with  them  fifteen  regiments  of  cavalry  as  the 
nucleus  of  the  new  standing  Army.  He  took  care  not  to 
officer  them  with  members  of  the  high  Noble  class.  The 
King  further  ordered  every  fifty  householders  to  furnish 
him  one  free  archer  to  become  a  paid  soldier  whenever  called 
for.  According  to  the  then  existing  population  of  the  King- 
dom, this  levy  with  the  fifteen  regiments  of  cavalry  would 
give  the  King  a  standing  Army  of  from  eighty  to  one  hun- 
dred thousand  men.  The  King  also  proceeded  through  his 
lawyers  to  invent  a  system  of  taxation  for  the  support  of 
this  formidable  force,  a  system  entirely  independent  of  the 
aids  or  grants  of  any  man  or  body  of  men.  Finally,  in  the 
same  momentous  year,  1438,  the  King  summoned  a  Na- 
tional Church  Council  to  meet  at  Bourges,  which  Council 
issued  the  well-known  " Pragmatic  Sanction"  of  Bourges, 
according  to  which  the  Royal  authority  over  the  Church 
in  France  was  declared  superior  to  the  Papal,  appeals  to 
Rome  were  forbidden,  the  annates  abolished  or  at  least 
suspended,  and  the  power  of  the  Pope  over  ecclesiastical 
appointments  placed  under  strict  limitations.  Charles 
VII,  lazy  and  incompetent  as  he  was,  had  thus  paved  the 
way  well  for  his  masterful  successor,  Louis  XI. 

From  a  purely  personal  point' of  view  Louis  XI  was  prob- 
ably the  meanest,  most  contemptible  little  sneak  that  ever 
sat  upon  a  throne,  but  from  a  political  point  of  view  he 
was,  considering  the  conditions  of  his  age,  one  of  the  great- 
est statesmen  whom  the  world  has  ever  produced.  He 
never  lost  out  of  sight  for  one  moment  the  great  purpose  of 
his  great  policy,  viz. :  to  elevate  the  mass  of  the  people,  to 


184  GOVERNMENT  AND  LIBERTY 

suppress  the  privileges  and  powers  of  the  Nobles,  and  to 
protect  the  National  Church  against  the  powers  of  the  Pope 
and  the  Curia.  It  cannot  be  said  that  his  purpose  in  ele- 
vating the  common  man  was  to  give  him  liberty  over  against 
the  throne,  but  only  immunity  against  the  power  and  priv- 
ileges of  the  Nobles.  He  appointed  chiefly  lawyers  and 
burghers  to  office.  He  elaborated  his  father's  system  of 
Royal  taxation.  He  substituted  hired  soldiery  for  the  free 
archers  and  constituted  an  Army,  thus,  entirely  subject 
to  his  own  will.  His  tax  system  brought  him  in  more  than 
double  the  revenue  which  his  father  had  ever  gathered, 
and  his  Army  was  twice  the  size  of  the  force  constituted 
by  his  father.  He  had  plenty  of  money  always  coming 
in  and,  as  he  was  economical  to  the  point  of  niggardliness, 
he  always  had  money  on  hand  for  any  enterprise.  He  was 
liberal  to  the  Church,  but  he  held  a  strong  hand  over  it. 
We  may  say,  finally,  that  at  the  end  of  his  reign  his  Gov- 
ernment was  absolute.  The  Church  had  through  the  de- 
moralizing influences  of  the  Renaissance  and  the  great 
schism  lost  its  power  over  King  or  people.  The  Etats- 
Generaux  had  dropped  out  of  existence,  and  the  Judicial 
tribunals,  the  Parliaments,  were  in  the  hands  of  the  King's 
own  men.  All  the  Mediaeval  means  of  limiting  Govern- 
ment had  disappeared  and  there  was  nothing  left  in  prin- 
ciple but  the  King  and  the  nation,  and  the  King  was  su- 
preme over  the  nation. 

The  English  development  proceeded  a  little  differently, 
but  came  momentarily,  at  least,  to  the  same  result.  Dur- 
ing the  second  quarter  of  the  fifteenth  century,  the  four 
essential  limitations  upon  the  Monarchy  were  the  Free 
Cities,  the  Feudal  Barons,  the  Parliament,  and  the  Church. 

The  Free  Cities  were  local  self-governments  based  on  a 
broad  participation  of  the  citizens  in  the  Government; 


THE  EFFORT  OF  EUROPE 


185 


the  Barons  still  wielded  the  powers  of  local  Government 
in  their  baronies  and  kept  such  large  bodies  of  retainers  as 
to  be  almost  termed  small  standing  armies;  the  Church 
maintained  its  Mediaeval  independence  over  against  the 
Royal  Government  and  its  connection  with  Rome  and 
the  Papacy,  recognizing  the  supremacy  of  the  Popes  and 
the  ecumenical  Councils;  and  the  Parliament  clung  to  its 
power  of  legislation,  taxation,  and  to  its  position  as  supreme 
Judicial  body. 

It  was  the  civil  war  of  some  thirty  years'  duration  from 
1455  to  1485  between  the  houses  of  Lancaster  and  York, 
over  the  succession  to  the  Crown,  which  gave  the  Monarchy 
the  opportunity  to  free  itself  from  all  these  limitations  and 
make  itself  absolute.  In  this  war  the  Noble  houses  suffered 
so  severely  that  the  Barons  were  no  longer  able  to  main- 
tain their  independent  local  Government  over  against  the 
King,  or  to  keep  their  great  bands  of  retainers  now  de- 
clared unlawful  by  the  King,  or  to  resist  his  will  in  Parlia- 
ment. This  was  the  key  to  the  whole  situation  and  when 
Henry  VII,  the  Lancastrian  claimant,  overthrew  Richard 
III  at  Bosworth  in  August  of  1485,  the  Parliament  was 
compelled  to  ratify  his  claim  to  the  Crown  and  settle  the 
same,  in  so  far  as  its  power  went,  in  the  heirs  of  his  body, 
before  his  marriage  to  Elizabeth,  heiress  of  York,  gave  him 
any  claims  from  that  quarter.  From  the  very  first,  Henry 
VII,  founder  of  the  Royal  House  of  Tudor,  addressed  him- 
self consciously  to  the  problem  of  making  the  Kingship 
hereditary  in  his  descendants  and  absolute  in  its  powers. 
The  relation  of  the  King  to  the  Parliament  at  that  stage 
in  the  development  of  the  political  history  of  England 
gave  a  powerful  personality  on  the  throne  ample  oppor- 
tunity for  subordinating  Parliament  to  the  King.  In  the 
first  place  the  Barons  in  the  House  of  Lords  had  been  so 


i86  GOVERNMENT  AND  LIBERTY 

shorn  of  their  independence  in  the  civil  war,  the  War  of 
the  Roses,  that  they  did  not  dare  to  oppose  the  will  of  the 
King.  The  King  enforced  rigidly  what  was  called  the 
Statute  of  Liveries,  Edward  IV's  order  against  the  keeping 
of  bodies  of  retainers,  little  standing  armies,  against  the 
Barons.  He  caused  their  Feudal  strongholds  to  be  demol- 
ished, and  he  himself  possessed  the  only  train  of  artillery 
in  the  Kingdom,  by  means  of  which  he  was  more  than  a 
match  for  all  the  feudal  military  which  the  united  Barony 
could  bring  against  him.  In  the  second  place,  the  King 
was  in  position  to  control  the  membership  of  the  House  of 
Commons  by  reorganizing  the  governments  of  the  Cities 
through  royal  charters  of  municipal  Government,  recently 
invented  by  the  Crown  lawyers.  These  charters  vested 
municipal  Government  in  the  hands  of  a  few  persons  se- 
lected originally  by  the  King  and  exercising  afterward  the 
powers  of  a  close  corporation.  The  members  sent  by  these 
Municipalities,  upon  the  Royal  call,  to  the  House  of  Com- 
mons were,  naturally,  supporters  of  the  King,  as  much  so 
as  the  Barons  summoned  personally  by  writs  issued  by  the 
King.  Moreover,  the  method  of  procedure  in  legislation 
furnished  the  King  with  further  means  of  control.  For 
example,  the  Parliament  could  assemble  only  upon  the 
ICing's  call,  and  he  could  prorogue  and  dissolve  it.  Then, 
when  assembled,  the  theory  of  its  action  was  that  the 
Commons  petitioned  the  King  and  that  the  King  legislated 
with  the  advice  of  the  Lords.  It  was  not  even  settled 
that  the  Commons  had  the  exclusive  right  of  petition  for 
the  enactment  of  law,  or  that  the  King  could  not  ordain 
law  without  petition  from  any  source,  or  that  the  King 
could  not  dispense  with  the  execution  of  a  law  temporarily 
or  permanently.  All  these  loopholes  were  made  use  of 
by  Henry  VII  to  rid  himself  of  the  limitations  of  Parlia- 


THE  EFFORT  OF  EUROPE  187 

mentary  power  over  the  Royal  will,  while  as  to  its  power 
over  taxation,  the  King  undertook  to  levy  tribute  in  ways 
not  subject  to  Parliamentary  control,  by  benevolences, 
forced  loans,  customs,  etc.  In  fact,  Henry  VII  ruled  with- 
out summoning  any  Parliament  for  mpst  of  the  last  decade 
of  his  reign,  and  left  a  treasure  amounting  to  some  ten 
millions  of  dollars  to  his  successor. 

Henry  VIII  succeeded  to  the  throne  without  question, 
on  the  principle  of  hereditary  right,  and  in  the  beginning 
of  his  reign  gave  great  promise  of  ruling  with  benevolence 
and  liberality.  Under  the  influence  of  his  great  Minister, 
Cardinal  Wolsey,  however,  he  was  shy  of  Parliamentary 
participation  in  his  Government,  and  omitted  to  call  Parlia- 
ment whenever  he  could  possibly  manage  to  get  on  with- 
out it.  He  succeeded  in  emancipating  himself  from  every 
limitation  upon  his  absolutism  except  that  imposed  by  the 
Church.  During  the  first  years  of  his  reign,  he  manifested 
no  purpose  of  freeing  himself  from  this'.  As  we  have  seen, 
he  entered  into  a  polemical  struggle  with  Luther  as  defender 
of  the  Roman  Catholic  faith  and  received  this  title  from 
Pope  Leo  X.  It  was  not  until  he  desired  to  rid  himself 
of  his  Queen,  Catherine  of  Aragon,  who  was  homely,  sickly, 
and  some  five  years  his  senior,  that  he  entered  upon  that 
course  of  hostility  to  the  Pope  which  brought  about  finally 
—I  will  not  say  the  English  Reformation,  but  the  Act  of 
Royal  Supremacy,  the  nationalizing  of  the  Roman  Catholic 
Church  in  England  under  the  papacy  of  the  King. 

Nor  will  I  undertake  to  say  whether  personal  or  political 
considerations  weighed  heavier  with  Henry  in  carrying  out 
his  purpose.  I  think  the  King  was  really  troubled  both 
by  the  lack  of  a  male  heir  and  by  the  anti-Spanish  policy 
of  Wolsey. 

Wolsey's  idea  was  to  checkmate  the  power  of  the  King's 


i88  GOVERNMENT  AND  LIBERTY 

nephew,  the  Emperor  Charles  V,  by  bringing  about  the 
marriage  of  Henry  with  a  French  princess.  It  is  even  sus- 
pected that  Wolsey  had  some  idea  of  becoming  Pope  him- 
self through  the  success  of  such  a  policy.  At  any  rate,  he 
favored  the  divorce  so  long  as  he  thought  that  the  French 
marriage  would  follow  it,  but  when  the  King  took  things 
into  his  own  hands  and  announced  his  purpose  of  taking 
the  pretty  Anne  Boleyn  for  his  Queen,  Wolsey  showed 
signs  of  opposition,  and  was  immediately  banished  from 
his  high  place.  Thomas  Cromwell,  one  of  Wolsey's  subor- 
dinates in  office,  was  made  his  successor,  and  became 
Henry's  successful  agent  for  carrying  the  Tudor  absolutism 
to  its  highest  point  of  consummation.  He  was  a  man  of 
low  birth,  who  found  his  way  early  into  the  service  of  the 
Marchioness  of  Dorset,  and  then  went  to  Italy  and  joined 
one  of  those  bands  of  ruffians  known  at  that  time  in  Italy 
as  "  Compagnie  di  Ventura."  He  was  a  man  of  remarkable 
intelligence  and  will-power,  and  he  learned  readily  in  Italy 
the  politics  of  Machiavelli  and  the  Medici.  The  Prince 
of  Machiavelli  was  his  political  bible.  He  was  the  man  who 
first  suggested  to  Henry  to  solve  the  divorce  question  by 
proclaiming  the  independence  of  the  Church  in  England 
against  the  Pope  and  the  Curia,  and  assuming  the  head- 
ship of  it  himself.  It  is  recorded  by  the  historians  that 
Henry  shrank,  at  first,  from  taking  so  radical  a  step,  but 
when  the  thought  became  familiar  to  him  it  lost  its  terrors 
and  was  finally  embraced. 

How  to  bring  this  vast  change  about  was  now  the  ques- 
tion. Cromwell,  unlike  Wolsey  or  Henry  himself,  did  not 
fear  the  assembly  of  Parliament.  He  understood  how  to 
pack  the  Parliament  with  his  own  adherents  by  the  power 
of  the  Crown  in  the  issue  of  the  writs  of  summons  and  he 
knew  how  to  manage  its  proceedings  when  assembled.  It 


THE  EFFORT  OF  EUROPE  189 

was  no  difficult  matter  for  him  to  secure  from  Parliament 
the  Act  of  Supremacy  of  the  year  1534.  He  first  bullied 
the  Clergy  by  declaring  that  they  and  the  whole  nation 
had  made  themselves  subject  to  the  penalties  of  the  Statute 
of  Praemunire  for  recognizing  the  authority  of  Wolsey  as 
Legate  of  the  Pope.  Under  the  terror  of  his  threats  of 
punishment  for  the  commission  of  this  trumped-up  crime, 
he  forced  the  Clergy  to  pay  a  fine  amounting  to  a  million 
pounds  sterling  of  the  present  coinage,  and  to  give  a  silent 
assent  to  the  claim  of  the  King  to  being  the  "Protector 
and  only  supreme  head  of  the  Church  and  Clergy  of  Eng- 
land." The  King  then  expelled  Queen  Catherine  from  the 
palace,  and  Cromwell  forced  the  Clergy  in  Convocation 
to  propose  to  Parliament  the  withdrawal  of  the  first-fruits 
of  the  bishoprics  in  England  from  payment  to  the  Pope, 
and  in  case  the  Pope  should  refuse  to  recognize  the  Bishops 
who  failed  to  pay  them,  to  withdraw  the  obedience  of  the 
King  and  people  of  England  from  the  Roman  See.  The 
Parliament  passed  the  Act  to  this  effect,  to  be  executed 
at  the  discretion  of  the  King.  Pope  Clement,  however, 
stood  firm,  rebuked  the  King  for  his  adultery  with  Anne 
Boleyn,  and  ordered  him  to  restore  the  lawful  Queen  to 
her  place.  Disregarding  the  command  of  the  Pope,  Henry 
married  Anne  Boleyn.  Cranmer,  the  new  Archbishop  of 
Canterbury,  declared  the  former  marriage  of  the  King  in- 
valid, and  a  few  days  later  crowned  Anne  as  Queen,  and 
Parliament  declared  the  King  to  be  the  Supreme  Head  of 
the  Church  in  England,  and  placed  in  his  hands  the  un- 
limited control  in  its  Government.  The  last  limitation 
upon  the  Royal  power  and  authority  had  now  fallen,  and 
the  absolute  Monarchy  in  England  was  now  an  accom- 
plished fact. 
The  development  of  the  Monarchy  proceeded  much  less 


190  GOVERNMENT  AND  LIBERTY 

rapidly  in  Germany  and  Italy  and  took  also  quite  a  differ- 
ent turn  because  of  the  restraining  influences  both  of  the 
Empire  and  the  Papacy.  After  the  failure  of  the  three 
Houses  of  Franconia,  Saxony,  and  Hohenstaufen  to  make 
the  Empire  an  hereditary  Monarchy,  the  German  King 
was  chosen  by  the  Feudal  Princes  and  became  Emperor 
by  Papal  coronation  in  Rome.  Then  a  certain  ring  of  the 
greater  Princes  assumed  to  nominate  the  candidate  for  the 
German  Kingship  to  the  whole  body  of  the  Princes.  Fi- 
nally this  nomination  became  the  election  and  the  approval 
of  the  larger  body  fell  into  desuetude.  In  1338  the  Elec- 
tors declared  that  the  person  chosen  by  them  was  Emperor, 
as  well  as  King,  without  the  Papal  coronation.  In  1356, 
by  a  resolution  known  in  history  as  the  Golden  Bull,  they 
made  the  body  of  Electors  to  consist  of  the  Archbishops 
of  Mayence,  Treves,  and  Cologne,  the  Count  Palatine  of 
the  Rhine,  the  King  of  Bohemia,  the  Duke  of  Saxony,  and 
the  Margrave  of  Brandenburg.  With  these  developments 
it  became  utterly  impossible  for  the  Empire  to  grow  into 
a  national  absolute  Monarchy,  or  even  for  the  German 
Kingship  to  do  so.  The  Revival  of  Learning  and  the  Ref- 
ormation, by  weakening  the  influence  of  the  Church  and 
of  religion  and  dividing  the  Empire  politically  into  a 
Protestant  body  and  a  Catholic  body,  made  the  develop- 
ment of  the  Empire  and  even  of  the  German  Kingdom  into 
a  confederacy  of  states  unavoidable.  This  result  was 
consummated  by  the  Thirty  Years'  War  and  the  West- 
phalian  compact  of  1648.  If  after  this  there  was  to  be 
any  revival  of  Monarchy  in  Germany  and  Italy,  it  would 
be  neither  Imperial  nor  national  but  local. 

The  state  which  took  the  lead  and  set  the  example  in 
this  was  Prussia,  under  the  capable  and  enlightened  rule 
of  the  House  of  Hohenzollern.  This  great  House  of  Swabian 


THE  EFFORT  OF  EUROPE  191 

origin  won  first  the  Burgraviate  of  Nuremberg,  and  from 
this  foothold  secured  the  Margraviate  of  Brandenburg,  and 
from  this  latter  foothold  in  North  Germany  secured  the 
Grand-mastership  of  the  Teutonic  Order,  which  governed 
East  Prussia  under  the  overlordship  of  the  Polish  King. 
The  Margrave  of  Brandenburg,  one  of  the  Electoral  Princes, 
was  made  by  the  Reformation  head  of  the  Church  in  his 
domains  and  real  defender  of  Protestantism.  By  the 
Westphalian  pact  his  state  became  a  real  sovereign  body 
in  confederation  with  the  other  states  of  the  Holy  Roman 
Empire  of  the  German  Nation.  By  force  of  arms  he  drove 
the  Swedes,  who  during  the  Thirty  Years'  War  had  occupied 
Pomerania  and  other  parts  of  North  Germany,  back  into 
their  peninsula  and  freed  himself  from  the  overlordship 
of  the  Polish  King.  East  Prussia  was  thus  the  first  among 
the  territories  forming  the  later  Kingdom  to  become  an 
entirely  independent  state.  For  all  the  other  parts  of  his 
dominions  the  Margrave  of  Brandenburg  was  still  a  mem- 
ber of  the  Holy  Roman  Empire,  presided  over  by  the  Arch- 
duke of  Austria.  It  was  quite  natural,  therefore,  that  in 
assuming  the  Kingship,  in  1701,  the  Margrave  gave  his 
Kingdom  the  name  of  Prussia  instead  of  Brandenburg. 
King  Frederick  I  prepared  well  the  way  for  his  successor, 
Frederick  William  I,  and  the  latter  for  Frederick  II,  the 
Great,  under  whom  the  Prussian  Monarchy  reached  its 
full  absolutism. 

As  I  have  already  described  the  process  in  attaining  this 
result  in  the  cases  of  the  Monarchies  of  Spain,  France,  and 
England,  I  will  only  dwell  upon  those  points  in  which 
Prussia  offers  some  peculiarity.  As  the  Teutonic  Order  was 
a  Military  Order,  the  Government  of  Prussia  in  the  narrow 
sense,  that  is,  East  Prussia,  was  from  the  first  of  the  nature 
of  the  commandership  in  chief  of  the  Grand  Master.  That 


i92  GOVERNMENT  AND  LIBERTY 

the  methods  and  means  employed  in  East  Prussia  should 
be  extended  gradually  to  the  other  parts  of  the  complex 
forming  the  Prussian  state  in  the  large  sense  was  more  than 
natural.  It  was  necessary.  Prussia  was  thus  a  state  in 
which  the  natural  order  of  things  was  the  supremacy  of 
the  military  organization  over  the  civil,  and  this  meant 
the  absolute  Monarchy  of  the  commander-in-chief.  The 
Hohenzollerns  solved  the  problem,  however,  of  subordinat- 
ing the  Feudal  Lords  to  the  Crown  in  quite  a  different  way 
from  that  followed  by  the  Spanish  Hapsburgers,  the  Valois- 
Bourbons,  and  the  Tudor-Stuarts.  They  did  not  destroy 
their  nobility  in  order  to  found  their  absolutism  on  a 
purely  bourgeois  basis.  They  were  wise  enough  and  clever 
enough  to  see  that  this  meant,  in  very  large  degree,  the  de- 
struction of  intelligence  by  brute  force.  They  did  far 
better.  They  officered  their  standing  Army  with  their 
nobility,  bringing  them  thus  under  the  military  absolutism 
of  the  King  and,  through  the  strenuous  life  thus  imposed 
upon  them,  restraining  them  from  idleness  and  dissolute- 
ness, the  bane  of  the  aristocracy.  So  effectual  was  the 
Hohenzollern  system  that  the  King  did  not  find  it  neces- 
sary to  bring  the  people,  through  compulsion,  under  his 
supremacy  as  head  of  the  Church,  and  Prussia  furnished 
us  the  unique  example  of  the  absolute  Monarchy  with  free- 
dom of  religion.  This  was  the  peculiar  trait  of  the  Mon- 
archy of  Frederick  the  Great.  Prussia  became  thus  the 
real  representative  of  the  Protestant  principle  in  religion 
and  of  the  intellectual  Monarchy  in  politics.  No  other 
state  of  the  Holy  Roman  Empire  was  able  to  compete 
with  Prussia  in  these  respects.  In  North  Germany  there 
was  only  Saxony  which  might  have  done  so,  but  the  recon- 
version of  its  Princely  House  to  Roman  Catholicism  created 
a  hostility  between  Prince  and  people  which  rendered  the 


THE  EFFORT  OF  EUROPE  193 

development  of  the  Monarchy,  in  the  Prussian  sense  and 
strength,  impossible. 

The  states  of  South  Germany  still  remained  after  the 
Peace  of  Westphalia  under  Papal  influence  and  control,  and 
no  South  German  Prince  was  able  to  realize  the  Monarchic 
system  according  to  the  Prussian  model.  Austria  was  under 
the  same  limitations.  Joseph  II  tried  in  vain  to  follow 
the  example  of  Frederick  the  Great,  but,  both  he  and  his 
people  being  Roman  Catholics,  he  could  not  only  not  claim 
the  headship  of  the  Church,  but  must  himself  recognize 
the  headship  of  the  Pope.  The  ethnical  variety,  also,  of 
his  subjects  made  it  next  to  impossible  to  weld  them  into 
a  real  nation.  And  so  the  efforts  of  Maria  Theresa  and  of 
Joseph  II  were  only  partially  successful,  and  Austria  never 
attained  the  real  absolute  system  which  would  have  fused 
the  different  ethnical  elements  into  a  harmonious  whole 
and  have  produced  a  consensus  of  national  opinion,  upon 
which  a  real  popular  political  system  can  be  finally  estab- 
lished. 

Italy  was  even  less  fortunate.  The  bonds  of  the  Em- 
pire having  been  practically  entirely  loosed,  Italy  fell  into 
five  principal  states:  Milan,  Venice,  Florence,  Rome,  and 
Naples.  In  these,  economic  and  social  differences  produced 
somewhat  different  results.  In  Milan  the  aristocratic  fam- 
ily of  Visconti  succeeded  in  winning  the  autocratic  power 
in  that  and  the  surrounding  Cities  and  in  forming  the 
Duchy  of  Milan,  with  which  he  was,  at  the  close  of  the 
fourteenth  century,  formally  invested  by  the  Emperor 
Wenzel.  This  investiture  was  more  for  the  purpose  of 
creating  the  show  of  legitimacy  and  for  securing  the  devo- 
lution of  power  by  hereditary  right  than  for  conferring 
any  real  power.  The  founder  of  the  House  of  Visconti, 
Giovan  Galeazzo,  owed  his  power  to  his  own  cleverness  in 


194  GOVERNMENT  AND  LIBERTY 

political  manipulation  and  to  the  success  in  arms  of  the 
hired  soldiery  which  his  own  private  wealth  enabled  him 
to  keep  in  his  employ.  He  aspired  to  unite  the  whole  of 
Italy  under  his  absolute  rule,  but  Venice  checked  him  on 
the  East  and  Florence  on  the  South.  He  succeeded,  how- 
ever, in  transmitting  his  power  to  his  son  Filippo  Maria, 
and  this  latter  also  succeeded  in  transmitting  it  to  the 
husband  of  his  only  child,  Francesco  Sforza,  his  chief 
Capitano,  who  made  the  Duchy  a  military  state  of  the 
most  tyrannic  type,  an  absolute  Monarchy  based  entirely 
upon  physical  force  and  terrorism. 

Venice,  on  the  other  hand,  furnishes  the  type  of  a  very 
different  development.  On  account  of  its  insular  position 
it  escaped  German  conquest  and  the  Feudal  System  follow- 
ing it;  and  on  account  of  its  maritime  position,  it  became 
a  Republic  of  merchants  engaged  chiefly  in  foreign  trade. 
An  executive  chosen  for  life,  the  Doge,  was  one  of  its  earli- 
est institutions,  and  the  inevitable  result  of  the  pursuit  of 
foreign  commerce  was  the  development  of  an  aristocracy 
of  wealth,  which,  because  among  other  things  of  the  na- 
ture of  the  policies  to  be  dealt  with  and  the  constant 
absence  of  a  large  part  of  the  middle  class  on  the  maritime 
voyages,  would  wield  the  powers  of  Government  as  their 
own  exclusive  right.  The  plutocratic  Council,  composed 
of  members  holding  by  inheritance,  and  its  executive  com- 
mittee, and  the  Doge  chosen  by  the  Council  for  life,  con- 
stituted the  Government  of  Venice.  It  was  a  wonderfully 
intelligent  and  capable  Government,  and  it  maintained 
against  all  possible  attempts  of  Caesaristic  democracy  an 
aristocratic  Republic  of  a  very  successful  and  prosperous 
kind.  The  decay  of  Venice  is  not  to  be  ascribed  to  the 
nature  of  its  Government,  but  rather  to  the  fact  that 
the  discovery  of  America  and  of  the  way  to  India  around 


THE  EFFORT  OF  EUROPE 


195 


the  Cape  of  Good  Hope  and  the  closing  of  the  Levant  by 
the  Turks  ruined  its  commercial  supremacy.  The  extension 
of  the  Government  of  the  Venetian  Republic  over  the  East- 
ern Valley  of  the  Po  was  also  a  cause  of  weakness.  It  in- 
troduced a  different  social  element  and  new  problems  for 
an  island  commercial  state.  With  the  Dogeship  of  Fran- 
cesco Foscari  it  attained  the  summit  of  its  greatness  and 
declined  from  that  moment  until  it  became  a  province  of 
the  Hapsburg  Monarchy. 

It  is  the  development  of  the  Florentine  Republic  into  the 
Dukedom  of  Tuscany  which  excites  greatest  interest  in 
the  student  of  political  science.  Florence  emerged  from  the 
Imperial  control  as  a  broadly  aristocratic  Republic  under 
della  Bella's  Constitution  established  in  the  last  decade  of 
the  thirteenth  century.  Having  become  practically  an 
independent  state,  the  necessities  of  such  a  Government 
made  for  concentration  of  power,  especially  in  time  of  war 
or  civil  conflict;  and  a  certain  part  of  the  aristocracy,  the 
more  capable  personalities,  very  naturally  came  to  hold 
the  public  powers.  This  part  or  circle  was  organized  about 
the  noble  family  of  the  Albizzi.  Under  their  lead  the  aris- 
tocratic party  expanded  the  City  Republic  into  the  Republic 
of  Tuscany  and  opened  the  way  for  it  to  the  sea  at  Livorno. 
Prosperity  and  the  prospect  of  continuing  prosperity  were 
most  satisfactory  and  promising,  but,  as  usual,  there  was 
another  aristocratic  family  in  Florence,  which  was  ambi- 
tious to  displace  the  Albizzi  in  the  control  of  affairs,  the 
Medici,  the  great  bankers  of  the  City.  Under  the  pretext 
of  elevating  the  lower  classes  to  participation  in  the  Govern- 
ment, and  under  the  appearance  of  declining  or  of  not 
seeking  office  for  themselves,  the  first  four  heads  of  the 
Medici,  Salvestro,  Vieri,  Giovanni,  and  Cosimo,  labored 
incessantly  for  fifty  years,  1380-1430,  to  gain  wealth  and 


i96  GOVERNMENT  AND  LIBERTY 

organize  a  party,  the  democratic  party,  with  themselves 
as  its  permanent  head:  as  we  would  now  say,  as  its  boss. 
They  succeeded  in  bringing  most  of  the  tradesmen  and 
artisans  of  the  city  under  some  sort  of  financial  obligation 
to  themselves  through  the  transactions  of  their  great  bank, 
and  down  to  the  era  of  Lorenzo  they  lived  simply  them- 
selves, gave  largely  and  cast  their  bread  freely  upon  the 
waters,  awaiting  patiently  the  day  of  its  return  with  interest 
compounded  many  times  over.  They  preferred  the  per- 
manent headship  of  the  party  which  elected  the  Magis- 
trates to  the  offices  themselves  with  their  short  terms  and 
their  responsibilities.  They  became  thus  the  real  perma- 
nent rulers  of  the  Republic  without  incurring  the  burdens 
and  the  uncertainties  of  governmental  office,  and  were 
able  always  to  find  a  scapegoat  for  every  failure,  mistake, 
or  misfortune.  Moreover,  to  have  all  of  the  offices  at  their 
disposal  was  a  far  more  important  thing  for  their  purpose 
than  to  occupy  a  single  one,  however  powerful. 

That  purpose  was  to  use  the  Government  for  their  own 
private  advancement,  and  finally  to  change  the  Republic 
into  the  hereditary  Principality  of  the  Medici.  The  as- 
tuteness with  which  they  worked  all  the  means  of  corrup- 
tion within  their  hands  under  the  form  always  of  deference 
to  the  people — the  poor,  dear,  deluded  people — was  posi- 
tively infernal,  and  their  success  was  absolutely  diabolical. 
The  methods  which  they  followed  in  changing  the  most 
jealous  Republic  which  the  world  has  ever  produced  into 
the  Medician  Principality,  ruled  absolutely  by  Lorenzo 
the  Magnificent,  gave  Machiavelli  the  material  for  his 
noted,  though  very  variously  understood,  and  very  vari- 
ously appreciated,  work,  The  Prince,  and  they  leave  nothing 
to  be  added  in  the  science  of  deception,  trickery,  flattery, 
and  manipulation  of  all  weaknesses  and  corruption.  It  is 


THE  EFFORT  OF  EUROPE 


197 


the  greatest  example  in  history  of  the  circumvention  of 
physical  force  by  unscrupulous  shrewdness. 

The  failure  of  right  heirs  in  the  Angevan  line  of  Kings 
in  Naples  made  that  Kingdom  the  prey  of  war  during  the 
first  half  of  the  fifteenth  century,  between  Rene  of  Anjou 
and  Alphonso  of  Aragon.  Alphonso  with  his  Spanish  sol- 
diers won  the  day  and  established  the  military  Monarchy 
of  the  foreigner  in  Naples.  The  King,  it  must  be  said, 
ruled  with  benevolence,  and  was  also  a  great  patron  of 
letters  and  art.  He  was,  however,  an  absolute  Monarch 
of  the  sixteenth-century  type. 

Finally,  this  development  in  the  other  Italian  states 
made  it  necessary  for  the  Pope  to  consolidate  the  States 
of  the  Church  and  organize  them  in  Monarchic  unity  so 
as  to  prevent  the  head  of  the  Church  from  becoming  sub- 
ject to  a  despotic  secular  Government.  This  policy,  be- 
ginning with  Pope  Nicholas  V,  who  about  the  year  1450 
re-established  the  Papacy  in  Rome,  after  the  seat  of  it 
had  been  for  more  than  a  hundred  years  in  Avignon  and 
Florence,  was  brought  to  its  culmination  by  Alexander  VI, 
Borgia,  who  was  thought  to  be  planning  to  make  his  son 
Caesar  absolute  Monarch  over  all  Central  Italy  when 
death  called  him  from  earthly  employment  in  the  year 
1503.  The  despotism  of  the  Papacy  in  the  States  of  the 
Church  was  theocratic  rather  than  military,  and  while  it 
was  naturally  more  benevolent,  it  was  also  even  more 
absolute.  The  Church  was  inclined  to  limit  secular  Gov- 
ernment outside  of  the  States  of  the  Church,  but  inside  of 
them  its  limitations  could  be  only  self-limitations — in  other 
words,  benevolent  despotism. 

The  revival  of  the  Monarchy  in  Sweden  followed  swiftly 
upon  the  withdrawal  of  Sweden  from  its  Mediaeval  union 
with  Norway  and  Denmark,  under  the  leadership  of  the 


198  GOVERNMENT  AND  LIBERTY 

capable  young  Nobleman,  Gustavus  Vasa,  in  the  first 
quarter  of  the  sixteenth  century.  By  the  help  of  the 
citizens  of  the  towns  and  the  peasantry  of  the  country,  he 
recruited  a  strong  standing  Army  with  which  he  defended 
the  national  existence  of  Sweden  against  the  Norway- 
Danish  supremacy  and  held  his  own  Nobles  in  subjection 
to  the  Crown;  and  by  the  defense  of  Protestantism  and  the 
confiscation  of  the  property  of  the  Roman  Catholic  Church 
he  made  himself  head  of  the  Swedish  Church  and  enriched 
the  Royal  treasury.  In  1554  the  Swedish  National  Assem- 
bly established  the  right  of  his  family  to  the  throne  and  his 
two  great  descendants,  Charles  IX  and  Gustavus  Adolphus, 
carried  the  restored  national  Monarchy  to  the  highest  point 
of  its  absoluteness. 

In  the  Kingdom  of  Denmark-Norway  this  development 
had  accomplished  itself  even  earlier.  In  fact  it  was  this 
which  caused  the  withdrawal  of  Sweden  from  the  Scan- 
dinavian union.  Christian  II,  King  of  the  three  divisions 
of  the  Union,  had,  through  similar  means  to  those  later 
employed  by  Gustavus  Vasa  in  Sweden,  developed  the  ab- 
solutism of  his  Monarchy  to  such  a  degree  as,  in  the 
feeling  of  the  Swedes,  to  have  violated  the  pledges  of  the 
Articles  of  Union  of  1397.  This  feeling  it  was  which  caused 
the  withdrawal  of  Sweden  from  the  Union  in  1521-23. 
After  this  Norway  remained  in  union  with  Denmark  until 
the  close  of  the  French  Revolution,  and,  in  conjunction  with 
it,  was  subject  to  the  absolute  Monarchy  of  the  Danish 
House  legitimatized  by  the  Lutheran  Church  system. 

The  Middle  Ages  may  be  said  to  have  closed  politically  in 
Russia  during  the  first  quarter  of  the  seventeenth  century, 
when  the  Feudal  Lords  elected  Michael  Romanoff  King, 
or  Czar,  and  made  the  Crown  hereditary  in  his  family. 
There  was  little  city  life  comparatively  in  Russia  at  this 


THE  EFFORT  OF  EUROPE 


199 


period,  and  consequently  no  sufficient  burgher  class  for  the 
Monarch  to  rely  upon  for  defense  against  the  decentralizing 
power  and  disposition  of  the  Nobles;  and  the  peasantry 
were  too  deeply  sunken  in  ignorance  and  apathy,  and  too 
absolutely  absorbed  in  local  existence,  to  be  taken  into  ac- 
count in  the  formation  of  any  Royal  internal  policy.  The 
King,  or  Czar,  was  thrown  upon  the  Nobles  and  such  for- 
eign soldiery  as  he  could  hire,  and  he  adopted  something 
like  the  later  Prussian  practise  of  making  the  Nobles 
military  officials,  placing  them  thus  under  the  absolute 
power  of  the  Czar  as  Commander-in-Chief  and  securing 
their  services  -  for  the  Monarchy.  During  the  rule  of 
Michael,  his  own  father  was  recognized  as  the  Primate  of 
the  Russian  Church,  and  so  conducted  the  ecclesiastical 
affairs  that  they  proved  little,  if  any,  limitations  upon  the 
absoluteness  of  the  Monarch.  When  this  family  relation- 
ship between  the  Czar  and  the  Primate  passed  away,  as  it 
did  very  soon,  the  Czar  found  it  necessary  to  get  a  firmer 
grasp  upon  the  Church  himself,  and  Peter  the  Great  in 
the  early  part  of  the  eighteenth  century  abolished  the  sep- 
arate Church  primacy  and  made  himself  head  of  the  Church 
in  Russia  after  the  model  of  Henry  VIII  in  England.  He 
it  was  who  put  the  finish  upon  the  Russian  system  and 
made  it  a  military  Monarchy  backed  by  the  ecclesiastical 
power — in  other  words,  a  Jure-Divino  despotism. 

The  revival  of  the  Monarchy  during  the  fifteenth,  six- 
teenth, and  seventeenth  centuries  had  unquestionably  many 
beneficial  results  to  general  civilization.  It  restrained,  in 
considerable  degree  at  least,  the  privileged  classes  from 
oppressing  the  common  subjects.  It  improved  the  con- 
dition of  the  common  man.  It  developed  the  feeling  and 
the  idea  of  national  unity  and  of  the  nation.  It  substituted 
one  law  for  a  variety  of  Feudal  customs.  It  introduced  the 


200  GOVERNMENT  AND  LIBERTY 

distinction  between  private  property  and  public  office.  But 
from  the  point  of  view  of  our  problem,  the  reconciliation  of 
Government  with  Liberty,  it  did  nothing,  at  least  nothing 
directly.  It  sacrificed  Liberty  completely  to  Government 
in  that  it  made  Government  sovereign.  The  great  Mediaeval 
institution  which  had  been  the  chief  defense  of  the  Individ- 
ual against  the  arbitrariness  of  Government  had  itself  be- 
come subordinated  to  the  power  and  control  of  the  Monarch, 
in  greater  or  less  degree,  everywhere;  and  the  Mediaeval 
Legislatures  and  Courts  had  ceased  to  be  called  together  or 
had  become  Royal  institutions  entirely  under  the  King's 
control.  It  was  not  possible,  therefore,  that  this  should 
be  the  final  solution  of  the  great  problem,  the  last  word  in 
the  development  of  constitutional  law  and  political  science. 
It  simply  brought  about  that  national  unity  and  national 
consensus  on  the  part  of  the  people  at  large  necessary  to 
another  vigorous  and  more  conscious  effort  for  under- 
standing, and  for  bringing  into  their  proper  relations,  the 
three  great  concepts  of  political  science,  the  three  great 
forces  of  political  and  general  civilization,  viz. :  Sovereignty, 
Government,  and  Liberty. 


CHAPTER  IX 

THE  REVOLUTIONS 

HOWEVER  helpful  to  the  cause  of  absolutism  in  Govern- 
ment the  early  consequences  of  the  Reformation  were, 
still  the  fundamental  principles  of  it,  as  of  the  Renaissance, 
or  New  Learning,  were  the  direct  contradiction  of  both 
the  principle  and  practise  of  the  absolute  Monarchies. 
The  freedom  of  individual  thought  and  inquiry  was  the 
basis  of  both  these  movements,  and  while  it  addressed  it- 
self to  the  transformation  of  letters,  art,  science,  and  phi- 
losophy in  the  one  case,  it  sought  the  like  transformation 
of  the  religious  conscience  and  the  ecclesiastical  system 
in  the  other.  Such  a  movement  could  not  fail  to  extend 
finally  to  the  political  system  and  seek  its  transformation 
also. 

Where  the  spirit  of  the  Renaissance  attacked  the  Mon- 
archy, the  exaggeration  of  Individual  Liberty  fostered  by 
it  threatened  to  plunge  the  state  into  anarchy.  On  the 
other  hand,  where  the  real  spirit  of  the  Reformation  at- 
tacked it,  the  discipline  of  the  religious  life  and  the  self- 
culture  produced  by  it  led  the  whole  course  of  the  revolu- 
tion within  safe  lines.  The  contrast  offered  by  the  English 
and  German  revolutionary  movement  to  that  of  France 
and  Italy  is  to  be  explained  chiefly  in  this  way. 

The  Revolution  accomplished  itself  in  England  a  full 
century  before  it  did  in  France.  We  may  place  the  begin- 
ning of  it  as  far  back  as  1620,  when  King  James  I  entered 
upon  the  policy  of  connecting  Spain,  the  stanch  supporter 

201 


202  GOVERNMENT  AND  LIBERTY 

of  the  Roman  Catholic  Church,  with  England  both  diplo- 
matically and  by  the  marriage  of  Crown  Prince  Charles 
with  the  Spanish  Infanta.  King  James  seems  to  have 
fallen  under  the  influence  of  the  Spanish  Ambassador, 
Gondomar,  who  made  him  understand  that  the  best  way 
to  secure  the  permanence  of  the  absolute  Monarchic  system 
was  by  placing  it  on  the  Jure-Divino  basis,  which  Orthodox 
Catholicism  alone  could  supply.  Already  fifteen  years 
before  this  the  Parliament,  which  the  King  had  been  forced 
to  assemble  to  help  him  out  of  the  financial  straits  caused 
by  the  war  debt  created  by  his  predecessors  and  by  his  own 
excessive  extravagance,  had  disputed  the  King's  right  to 
levy  and  collect  duties  on  imports  and  exports,  although 
the  Exchequer  Chamber  of  the  Royal  Courts  had  decided 
this  question  flatly  in  favor  of  the  King's  prerogative, 
and  also  the  King's  right  to  absolute  power  over  the 
Church.  It  was  the  attitude  of  the  Parliament  upon  the 
latter  point  which  caused  the  King  to  dissolve  it  in  1610 
and  to  hold  out  four  years  longer  without  summoning  an- 
other. The  Parliament  of  1614  was,  however,  even  more 
determined  than  its  immediate  predecessor  to  put  an  end 
to  absolutism  in  taxation  and  Church  Government.  It 
was  in  this  Parliament  that  Eliot,  Pym,  and  Wentworth 
first  appeared  on  the  stage  of  the  constitutional  struggle. 
The  King  was  almost  terror-stricken  at  the  tone  which 
the  Commons  assumed.  He  quickly  dissolved  this  Parlia- 
ment, sending  some  of  the  leaders  of  the  Commons  to  the 
Tower,  and  ruled  for  seven  years  more  without  a  Parlia- 
ment. During  this  period  the  King  quarrelled  with  the 
Supreme  Judges  for  attempting  to  hold  the  ecclesiastical 
Courts  within  legal  limits,  and  expelled  the  Chief  Justice, 
Sir  Edward  Coke,  from  his  high  office,  because  he  refused 
to  recognize  the  claim  of  the  King  to  be  consulted  in  regard 


THE  EFFORT  OF  EUROPE  203 

to  decisions  involving  the  Royal  prerogative  before  they 
should  be  rendered.  The  Courts  as  well  as  the  Parliament 
now  began  to  be  inspired  with  hostile  sentiments  toward 
the  King.  But  more  dangerous  to  the  throne  than  all 
these  things  was  the  immorality  of  the  Sovereign  and  his 
Court.  The  King  was  himself  a  drunkard  and  a  libertine, 
and  the  orgies  of  Whitehall  became  the  sport  of  the  public 
and  of  the  stage.  He  was  deeply  in  love  with  a  handsome 
young  adventurer,  George  Villiers,  whom  he  was  con- 
stantly embracing  and  covering  with  kisses  in  the  most 
open  and  shameless  manner  and  whom  he  made  Duke  of 
Buckingham  and  chief  Minister  of  the  Crown.  Through 
his  disgusting  conduct  all  reverence  for  the  throne  was 
destroyed  and  universal  popular  contempt  took  its  place. 
Such  was  the  temper  of  the  nation  when  the  King  entered 
upon  his  Spanish  policy  under  the  direction  of  Buckingham 
and  summoned  the  Parliament  of  1621. 

This  Parliament  demanded  war  against  Spain  and  a 
Protestant  wife  for  Prince  Charles.  The  King  angrily  re- 
fused the  demand,  forbade  the  discussion  of  the  foreign 
policy  of  the  Kingdom  by  Parliament,  and  threatened  the 
leaders  with  imprisonment.  The  Commons  adopted  a 
strong  protest  against  being  denied  the  right  of  discussing 
any  question  involving  the  welfare  of  the  nation  and  re- 
corded the  same  in  its  minutes.  The  King  sent  for  the 
Journal  of  the  House  and  tore  the  resolution  out  of  it 
with  his  own  hand,  and  then  dissolved  the  Parliament. 

The  Prince,  accompanied  by  Buckingham,  went  to 
Madrid  to  claim  the  Infanta  and  take  her  back  to  Eng- 
land, but  the  Spanish  King  procrastinated  and  finally  the 
Minister,  Olivarez,  told  the  Prince  that  Spain  must  never 
assume  a  hostile  attitude  to  the  policy  of  the  Roman- 
German  Emperor — in  other  words,  that  Spain  must  always 


204  GOVERNMENT  AND  LIBERTY 

uphold  the  orthodox  Roman  Church  against  the  advance 
of  Protestantism.  When  the  knowledge  of  this  attitude 
of  the  Spanish  Government  was  spread  through  England, 
the  nation  rose  almost  as  one  man  in  its  demand  for  war 
against  Spain.  The  King  felt  obliged  to  call  the  Parlia- 
ment together  again,  and,  contrary  to  his  ideas  of  the  abso- 
luteness of  the  Royal  prerogative  in  the  management  of 
foreign  affairs,  to  lay  before  it  the  Spanish  situation. 
Both  Prince  Charles  and  Buckingham  joined  hands  with 
the  Parliament  for  Protestant  alliances  on  the  Continent 
and  war  against  Spain.  The  demoralized  King  gave  way, 
sickened  and  died,  and  Charles  I  ascended  the  throne  with 
popular  acclaim  and  under  popular  expectation  that  he 
would  rule  as  a  Protestant  Sovereign.  But  neither  Parlia- 
ment nor  the  nation  had  rightly  divined  Charles's  ideas 
and  plans.  It  is  quite  true  that  he  was  hostile  to  Roman 
Catholicism  and  the  Roman  Papacy,  but  he  was  equally 
hostile  to  the  Puritans  and  the  genuine  philosophy  of  the 
Reformation.  He  stood  for  a  National  Church,  including 
by  law  every  subject  of  the  state,  of  which  he  himself 
should  be  the  head  and  Pope.  He  placed  Archbishop  Laud 
in  the  position  of  Primate,  who  organized  the  clerical  party 
for  propagating  the  doctrine  of  the  Jure-Divino  Kingship. 
When  the  Parliament  became  conscious  of  these  tendencies, 
it  put  Montagu  in  the  Tower,  denied  to  the  King  the  usual 
grant  of  the  customs  during  life,  and  refused  him  a  subsidy. 
The  King  delivered  Montagu  from  imprisonment,  made 
him  Royal  Chaplain,  and  levied  and  collected  the  customs 
by  Royal  order. 

At  this  moment  appeared  John  Eliot,  whose  clear  thought 
had  fixed  upon  the  responsibility  of  the  Ministers  of  the 
Crown  to  Parliament  as  the  central  point  of  the  constitu- 
tional struggle  and  was  determined  to  establish  the  prin- 


THE  EFFORT  OF  EUROPE       205 

ciple  by  the  impeachment  of  Buckingham  himself.  He 
denounced  the  favorite  in  the  Parliament  of  1626  for  ad- 
vising the  King  to  commit  unconstitutional  acts,  for  his 
incompetence  in  office,  and  his  corrupt  and  personal  use 
of  public  funds.  In  spite  of  the  King's  threats,  the  Com- 
mons voted  the  impeachment  of  Buckingham,  and  arraigned 
the  Minister  before  the  House  of  Lords. 

Eliot's  powerful  presentation  of  the  case  was  so  convinc- 
ing that  the  King  himself  hurried  into  the  House  and 
sought  to  protect  his  favorite  by  assuming  personal  respon- 
sibility for  the  acts  charged  against  him.  He  also  ordered 
Eliot  to  be  arrested  and  imprisoned.  The  Commons 
demanded  his  release,  under  refusal  to  do  any  public 
business  until  this  should  be  effected.  After  a  few  days 
of  hot  struggle  Eliot  was  set  free,  shorn  of  such  offices  as 
the  King  could  take  from  him,  and  Parliament  was  again 
dissolved  before  judgment  or  the  impeachment  trial  could 
be  reached.  It  had,  however,  not  voted  the  subsidies  de- 
manded by  the  King,  and  he  resorted  to  the  hated  system 
of  benevolences  to  fill  the  treasury.  This  failing,  however, 
recourse  was  next  had  to  the  equally  hated  system  of 
forced  loans.  The  Commissioners  for  the  collection  of  the 
loans  found  universal  hostility  and  resistance,  which  they 
undertook  to  overcome  by  every  exercise  of  arbitrary  power. 

Hampden  was  cast  into  prison  because  he  said  he  feared 
to  call  down  upon  himself  the  curse  in  Magna  Charta 
should  he  submit  to  having  money  extracted  from  him  in 
this  way.  The  situation  was  becoming  so  threatening  that 
Buckingham  advised  the  King  to  bring  on  a  foreign  war, 
hoping  to  raise  the  prestige  of  the  Crown  by  a  great  mili- 
tary success.  The  campaign,  in  which  he  undertook  to 
rouse  and  sustain  the  Huguenots  of  Rochelle  against  the 
French  King,  was  a  miserable  failure  and  King  Charles, 


206  GOVERNMENT  AND  LIBERTY 

overwhelmed  still  further  with  debt,  was  compelled  to  call 
Parliament  together  again  and  demand  subsidies. 

This  Parliament  was  the  author  of  the  famous  Petition 
of  Right  of  the  year  1628.  In  this  noted  document,  Parlia- 
ment laid  the  foundation  for  the  personal  Liberty  and  secur- 
ity of  property  of  English  freemen.  It  was  a  demand  made 
upon  the  King  that  all  taxation,  forced  loans,  and  benev- 
olences, without  consent  of  Parliament,  deprivation  of 
goods,  punishment,  and  outlawry,  save  by  lawful  judgment 
of  one's  peers,  arbitrary  imprisonment  without  stated 
charge,  enactments  of  martial  law  in  time  of  peace,  billet- 
ing of  soldiers  and  sailors,  should  cease  forever,  and  that 
the  Ministers  and  officers  of  the  Crown  should  serve  the 
King  in  accordance  with  the  laws  and  statutes  of  the  realm. 
An  attack  upon  Buckingham,  led  by  Eliot  and  Coke,  dis- 
turbed the  King  to  such  a  degree  that  he  consented  to 
yield  his  consent  to  the  Petition  of  Right.  This  did  not, 
however,  save  the  favorite  from  the  wrath  of  the  Com- 
mons. They  still  demanded  the  removal  of  Buckingham, 
and  the  King  still  refused.  In  the  ensuing  wrangle  over 
the  question  Buckingham  perished  by  the  assassin's  dagger. 
As  usual,  however,  this  was  no  solution  of  the  question. 
The  aggrieved  King  appointed  Weston,  the  Duke's  favor- 
ite subordinate,  as  Lord  of  the  Treasury,  and  the  Duke's 
system  of  financial  administration  remained  in  force. 

There  was,  however,  a  thing  which  the  nation  and  the 
Parliament  dreaded  even  more  than  the  loss  of  personal 
Liberty  or  of  property,  namely,  the  destruction  of  religious 
Liberty.  The  cause  of  re-established  Romanism  was  tri- 
umphant on  the  Continent,  and  the  ecclesiastical  system 
promoted  by  Archbishop  Laud  and  sustained  by  the  King 
looked  to  the  extermination  of  all  religious  dissent  at 
home.  The  Commons  were  engaged  in  a  most  serious  de- 


THE  EFFORT  OF  EUROPE 


207 


bate  over  the  subject  when  the  Speaker  was  handed  an 
order  from  the  King  to  adjourn.  The  members  locked  the 
doors  of  the  House  and  held  the  Speaker  down  in  his  chair 
until  the  resolution  was  passed  declaring  any  Minister  of 
the  Crown  a  capital  enemy  to  the  Kingdom  and  the  Com- 
monwealth, who  should  propose  innovations  in  religion  or 
advise  the  collection  of  taxes  not  granted  by  Parliament, 
and  every  subject  of  the  realm  a  betrayer  and  an  enemy 
of  English  liberty,  who  should  voluntarily  submit  to  such 
acts  and  demands.  Thus  ominously  ended  the  Parliament 
of  1629,  the  last  to  be  assembled  for  eleven  years  succeed- 
ing its  dissolution. 

By  order  of  the  King  the  leaders  of  the  Constitutional 
party  in  the  last  Parliament  were  thrown  into  prison  where 
Eliot  soon  died,  and  the  King  began  through  two  powerful 
agents,  Wentworth  and  Laud,  that  very  Wentworth  of 
Yorkshire  who  had  begun  his  public  career  as  a  stanch 
Constitutionalist,  but  who  now  became  the  most  zealous 
promoter  of  Royal  absolutism,  to  invent  a  scheme  of  Gov- 
ernment which  would  free  him  from  the  necessity  of  ever 
calling  another  Parliament.  The  chief  work  of  Wentworth 
was  to  be  the  creation  of  a  Royal  standing  Army  and  a 
Royal  treasury  independent  of  Parliamentary  authority 
and  Parliamentary  grants,  while  Laud  was  to  overcome  all 
religious  dissent  and  enforce  religious  uniformity. 

The  Royal  Exchequer  now  entered  upon  a  course  of 
general  extortion.  Knighthood  was  forced  on  the  Gentry 
in  order  to  make  them  pay  a  definite  fine  in  order  to  ex- 
empt themselves  from  indefinite  aids.  Every  person  who 
had  built  a  house  outside  the  limits  of  London,  as  pre- 
scribed by  James  I,  was  forced  to  pay  three  years'  rent. 
Marriage  within  forbidden  degrees  was  heavily  paid  for 
in  money.  The  Star-Chamber  jurisdiction  was  turned  into 


208  GOVERNMENT  AND  LIBERTY 

a  means  for  filling  the  treasury.  Monopolies  of  all  sorts 
were  created  and  sold.  Quarrels  and  fights  between  per- 
sons of  high  rank  were  visited  with  severe  money  penalties. 
Customs  were  levied  and  collected  on  exports  and  imports. 
Benevolences  and  loans  were  demanded.  And,  finally,  an 
old  precedent  according  to  which  the  port  towns  and  mari- 
time counties  loaned  vessels  for  naval  war  was  declared  to 
give  warrant  to  the  King  to  levy  taxes  on  these  parts  of 
the  Kingdom  for  the  building  and  maintenance  of  a  regular 
Royal  Navy. 

Wentworth,  later  named  by  the  King  Earl  of  Strafford, 
soon  grew  restless,  however,  of  these  petty  retail  methods. 
He  evolved  a  larger  plan.  His  idea  was  to  take  advantage 
of  the  situation  in  Ireland,  where  the  Catholics  and  Protes- 
tants were  much  more  evenly  balanced  than  in  England, 
and  where  each  party  in  its  hostility  to  the  other  was 
forced  to  a  thorough  dependence  on  the  Crown,  to  create 
a  Royal  Army  and  an  independent  Royal  treasury.  The 
King  appointed  him  Lord-Lieutenant  of  Ireland,  and  in  a 
short  time  he  had  established  in  Ireland  the  model  for  the 
absolutism  of  Charles  in  England. 

At  the  same  time  Archbishop  Laud  was  carrying  out  his 
scheme  for  the  English  National  Church  as  a  branch  of 
the  universal  Church  of  which  the  Roman  Church  was 
only  another  branch.  He  could  not  conceive  of  a  Church 
without  Bishops  as  the  media  through  which  the  Apostolic 
grace  and  power  were  transmitted.  He,  therefore,  insisted 
on  conformity,  that  is,  upon  the  destruction  of  Puritanism, 
whose  chief  form  at  the  moment  was  Presbyterianism,  in 
Church  Government,  a  form  differing  from  Episcopalianism 
chiefly  in  the  absence  of  Bishops,  Bishops'  Courts  and  elab- 
orate ritual,  but  not  disputing  the  principle  of  a  National 
Church,  that  is  a  Church  of  which  all  subjects  of  the  state 


THE  EFFORT  OF  EUROPE 


209 


should  be  by  law  members.  Laud  all  but  succeeded,  by 
driving  the  Puritan  Ministers  out  of  their  pulpits,  in  re- 
establishing the  exclusive  Episcopal  hierarchy  and  the  eccle- 
siastical supremacy  of  the  Crown.  He  went  so  far  as  to 
move  the  King  to  establish  the  Bishopric  of  Edinburgh 
and  to  issue  a  book  of  canons  for  Scotland,  which  abolished 
the  Presbyterian  system  of  that  Kingdom. 

The  high  point  of  submission  to  these  assumptions  in 
civil  and  ecclesiastical  Government  was  reached  in  the 
year  1636.  In  1637,  the  resistance  began  which  was  to 
end  in  revolution.  The  Scots  repudiated  the  re-established 
Episcopal  system,  and  John  Hampden  refused  to  pay  the 
ship-money  tax  levied  upon  him.  In  the  latter  part  of 
this  year  Hampden's  case  was  argued  before  the  full  bench. 
The  decision  was  rendered  in  the  spring  of  1638.  The 
Court  vindicated  the  Royal  authority  to  tax,  without  re- 
gard to  Parliamentary  prohibition  or  limitations,  and  pro- 
nounced void  all  Acts  of  Parliament  militating  with  the 
King's  prerogative  to  defend  his  Kingdom  in  the  ways  and 
through  the  means  selected  by  himself. 

The  irritation  against  the  Judges  produced  by  this  de- 
cision was  deep  and  wide-spread.  The  nation  now  saw  and 
felt  that  it  must  do  battle  for  its  liberties.  Matters  were 
already  seething  in  the  North.  The  demand  of  the  King 
for  the  submission  of  the  Scots  to  the  ecclesiastical  Estab- 
lishment was  met  by  the  Covenant  entered  into  by  a  great 
host  in  the  Gray  Friars  Churchyard  in  Edinburgh  to  re- 
store Presbyterianism  and  expel  the  Bishops  from  the  land. 
The  Covenant  was  subscribed  to,  practically,  by  the  Scotch 
nation,  and  it  contained  finally  the  demand  upon  the  King 
for  the  assembly  of  a  free  Parliament.  The  King  doggedly 
refused  and  prepared  for  war.  The  Scots  had,  however, 
anticipated  him  and  a  good  army  of  ten  thousand  conscien- 


210  GOVERNMENT  AND  LIBERTY 

tious  men,  under  the  command  of  Leslie  and  Montrose, 
met  him  at  the  frontier  and  offered  him  battle.  The  King 
was  overawed  and,  instead  of  righting,  promised  to  assemble 
Parliament.  The  Commons  again  refused  the  King's  de- 
mands until  their  grievances  should  be  satisfied  and,  after 
a  few  days  session,  the  Short  Parliament  of  1640  was  dis- 
solved and  with  the  Irish  troops  and  subsidies  brought 
by  Strafford  the  King  undertook  the  renewal  of  the  struggle. 
But  the  Scots  were  already  over  the  line  in  Newcastle 
and  in  position  to  dictate  terms,  for  the  King's  troops  were 
deserting  and  England  was  practically  on  the  point  of  in- 
surrection in  his  rear.  There  was  nothing  left  for  the  de- 
feated and  deserted  King  to  do  but  to  assemble  Parliament, 
the  Long  Parliament  of  1640.  As  the  leader  of  the  Com- 
mons in  the  Parliament  appeared  the  Somersetshire  Gentle- 
man, John  Pym,  the  sole  remaining  member  of  that  band 
of  five,  who  had  stood  out  in  the  Parliament  of  1620  for 
constitutional  Liberty  with  so  much  vigor,  Coke,  Cotton, 
Eliot,  Wentworth,  and  himself.  Wentworth  was  indeed 
still  alive,  but  as  the  Earl  of  Strafford  he  was  more  than 
dead  in  his  old  character.  'Pym  was  the  man  who  foresaw 
the  whole  course  which  the  Revolution  must  take  in  order 
that  it  should  proceed  according  to  the  forms,  or  at  least 
fictions,  of  law,  which  is  always  a  necessary  condition  for 
the  success  of  anything  requiring  the  approval  of  English 
thought.  Pym's  idea  was  that  Parliament  was  superior 
to  the  King,  since  the  earliest  Parliaments  of  English  his- 
tory chose  the  King,  and  since  the  later  Kings  held  also 
chiefly  by  Parliamentary  title,  and  that,  therefore,  if  the 
King  would  not  act  with  the  Parliament,  Parliament  might 
regard  the  refusal  as  abdication  and  proceed  to  create, 
temporarily,  at  least,  another  executive  agent.  For  all 
this  he  had  historical  precedent.  But  he  went  further  and 


THE  EFFORT  OF  EUROPE 


211 


took  his  stand  on  the  principle  that  the  Commons  were  of 
more  importance  than  the  Lords  in  the  Parliament  and,  if 
obstructed  by  the  Lords,  might  act  alone.  For  this  he  had 
no  precedent,  and  could  not  appeal  for  justification  to  his- 
tory. We  of  to-day  can  see  that,  while  in  this  he  was  not 
true  historian,  he  was  indeed  true  prophet. 

When  this  Long  Parliament  opened  in  the  autumn  of 
1640,  it  was  immediately  buried  under  petitions  for  redress 
from  almost  every  constituency  in  the  Kingdom.  Nearly 
fifty  committees  were  necessary  to  examine  and  report 
upon  them.  The  Parliament  then  proceeded  to  undo  the 
whole  system  of  absolutism  which  Strafford  and  Laud  had 
built  up.  It  abolished  the  Courts  of  Star-Chamber  and 
High  Commission,  deprived  the  Privy  Council  of  the  King 
and  many  inferior  tribunals  of  their  irregular  and  arbi- 
trary jurisdiction,  pronounced  ship  money  and  all  import 
and  export  duties  levied  without  consent  of  Parliament 
illegal,  ordered  the  assembly  of  Parliament  every  three 
years,  without  Royal  writ,  if  necessary,  threw  Laud  into 
prison,  and  by  a  Bill  of  Attainder  sent  Strafford  to  the 
executioner's  block,  and  resolved  that  the  existing  Parlia- 
ment should  not  be  dissolved  without  its  own  consent 
thereto. 

Terror-stricken,  the  King  gave  way  before  this  resolute 
advance,  but  with  a  heart  full  of  anger  and  revenge.  The 
Scotch  Army  was  now  paid  by  Parliament  and  it  withdrew 
from  the  northern  border,  and  the  King  felt  himself  freer. 
He  proceeded  to  Edinburgh  and  conciliated  the  Scots  by 
yielding  to  their  every  demand,  and  then  spoiled  it  all 
again  by  intriguing  with  the  Earl  of  Montrose  to  restore 
his  arbitrary  power  in  Scotland. 

At  the  same  time  the  fall  of  Strafford  had  left  Ireland  in 
a  state  of  anarchy,  and  the  battle  between  Catholic  and 


212  GOVERNMENT  AND  LIBERTY 

Protestant  began.  The  massacre  was  almost  indescriba- 
ble. The  King  looked  upon  the  situation  as  a  warning  to 
England  of  what  would  happen  when  his  Government 
should  disappear,  but  the  Parliament  considered  it  a  part 
of  a  Royal  scheme  for  the  restoration  of  Royal  absolutism. 
Nevertheless,  a  certain  reaction  in  the  King's  favor  set  in, 
and  it  was  with  much  difficulty  that  Parliament  passed  the 
Act  called  the  Remonstrance  in  November  of  1641,  in  which 
it  was  declared  that  Parliament  had  no  design  to  abolish 
Episcopacy,  but  only  to  lessen  the  powers  of  the  Bishops, 
secure  the  enforcement  of  existing  laws  against  Papists, 
and  the  due  administration  of  justice  and  also  the  appoint- 
ment of  Ministers  of  the  Crown  in  whom  the  Parliament 
had  confidence.  The  Commons,  however,  passed  a  bill  by 
a  practically  unanimous  vote  to  expel  the  Bishops  from 
the  House  of  Lords.  This  was  highly  resented  by  the 
King  and  the  Bishops,  and  the  contest  over  the  question 
resulted  in  riot  and  bloodshed  and  the  mobbing  of  the 
Bishops  themselves.  The  King  undertook  to  arrest  Pym, 
Hampden,  and  several  others  of  the  leaders  of  the  Com- 
mons. He  even  appeared  himself  in  the  House  with  a 
retinue  of  courtiers  for  the  purpose,  but  they  had  all  escaped 
and  the  Royal  conduct  only  diminished  the  reverence  for 
the  throne. 

The  people  regarded  the  act  of  the  King  as  threatening 
the  safety  of  Parliament,  and  armed  bands  began  to 
gather  around  the  buildings  for  its  defense.  The  King  now 
determined  to  disperse  Parliament  and  maintain  the 
throne  by  military  power.  He  withdrew  from  Whitehall 
and  began  to  collect  forces  by  Royal  commissions.  The 
Commons  intimidated  the  Lords  until  the  latter  agreed  to 
the  bill  for  excluding  the  Bishops  from  the  House  of  Lords; 
and  the  Parliament  appointed  Lord  Lieutenants  of  the 


THE  EFFORT  OF  EUROPE 


213 


militia  in  the  Counties  and  organized  an  Army  independent 
of  the  King.  Both  King  and  Parliament  violated  in  these 
acts  constitutional  precedent.  The  King's  partisans  now 
withdrew  from  the  Parliament  and  betook  themselves  to 
the  King's  camp  at  York,  and  the  Parliament  created  as 
Executive  power  a  Committee  of  Public  Safety,  of  which 
Hampden,  Hollis,  and  Pym  were  the  chiefs. 

The  first  battle,  that  at  Edgehill  in  October  of  1642,  was 
indecisive.  During  the  year  1643  the  victory  seemed  in- 
clining to  the  side  of  the  King.  The  death  of  Hampden 
at  Chalgrave  was  a  severe  loss  to  the  cause  of  the  Parlia- 
ment. These  experiences,  however,  brought  Pym  and  his 
associates  to  the  conclusion  that  they  must  gain  the  aid  of 
the  Scots  by  making  Presbyterianism  the  State  religion  of 
Parliamentary  England.  This  was  effected  through  the 
Covenant  entered  into  at  the  close  of  the  year.  This  was 
the  final  work  of  Pym,  whose  death  left  the  execution  of  the 
agreement  in  the  hands  of  the  "  Committee  of  the  two 
Kingdoms,"  which  thenceforth  conducted  the  war  from 
the  side  of  the  Parliament.  In  July  of  1644,  the  prepara- 
tions were  so  completed  that  the  Parliamentary  Army  dealt 
the  Bang's  forces  a  telling  blow  at  Marston  Moor.  It  was 
Oliver  Cromwell  with  his  brigade  of  Ironsides — in  other 
words,  religious  fanatics — who  had  won  the  day,  and  from 
this  moment  forward,  the  Revolution  entered  upon  a  more 
radical  course.  Cromwell  himself  was  not  at  first  hostile 
to  Presbyterianism,  but  a  large  part  of  his  following  were 
men  who  had  broken  away  from  the  idea  of  a  National 
Church  of  any  kind,  and  had  embraced  the  principle  of  the 
separation  of  " Church  and  State,"  and  the  independence 
of  each  religious  community.  Under  their  influence  and 
impelled  by  the  course  of  events,  Cromwell  now  advocated 
the  reorganization  of  the  Army  under  leaders  who  were  not 


2i4  GOVERNMENT  AND  LIBERTY 

members  of  Parliament,  the  abolition  of  all  social  distinc- 
tions in  the  officering  of  the  forces,  and  a  more  vigorous 
prosecution  of  the  war  against  the  King.  The  policy  of 
the  Parliament  had  been  not  to  destroy  the  King  or  the 
Kingship,  but  simply  to  drive  the  King  to  the  acceptance 
of  such  limitations  upon  his  power  as  the  Parliament  should 
demand. 

Cromwell's  idea  was  now  to  remove  all  political  considera- 
tions from  the  prosecution  of  the  military  movements  and 
wage  the  war  for  victory,  victory  absolute  and  decisive, 
no  matter  what  should  become  of  the  King  or  the  King- 
ship. This  plan  was  called  "The  New  Model,"  and  it 
was  adopted  by  the  Parliament.  The  result  was  that  the 
young  and  progressive  Fairfax  supplanted  the  more  con- 
servative Essex  as  Commander-in-Chief  of  the  Parliamen- 
tary Army,  while  Parliament  allowed  Cromwell,  though  a 
member,  to  retain  the  command  of  his  Ironsides  for  a  little 
while.  But  that  little  while  was  a  decisive  period.  Within 
its  limits  fell  the  battle  of  June  14,  1645,  at  Naseby,  which 
ruined  the  Royal  cause  and  brought  the  war  momentarily 
to  a  close. 

We  now  enter  upon  a  new  stage  of  the  revolutionary 
movement,  that  in  which  the  Presbyterians  and  the  Non- 
conformists struggle  for  the  mastery  of  the  Parliament, 
and  the  King  intrigues  with  each  in  turn  with  the  purpose 
of  restoring  his  lost  absolutism.  The  organized  strength 
of  the  Presbyterians  was  in  the  Parliament,  that  of  the 
Independents  was  in  the  Army.  It  was  now,  therefore,  a 
struggle  between  the  Parliament  and  the  Army.  The 
King,  who  after  Naseby  had  betaken  himself  to  his  Scots, 
was  now  handed  over  by  the  Commanders  of  the  Scotch 
Army  to  a  Committee  of  Parliament  on  payment  to  them 
of  four  hundred  thousand  pounds  sterling.  The  Parliament 


THE  EFFORT  OF  EUROPE 


215 


undertook  to  disband  the  Army  and  enforce  Presbyterian 
uniformity,  and  the  Army  refused  to  be  disbanded,  created 
a  Council  of  its  own  by  electing  two  men  from  each  regi- 
ment, naming  them  the  Council  of  Assistants,  and  seized 
by  force  the  person  of  the  King.  The  Parliament  turned 
furiously  upon  Cromwell  as  the  instigator  of  these  acts, 
and  forced  him  to  quit  Parliament  and  betake  himself  to 
the  Army.  The  Army  now  marched  to  London  and  de- 
manded toleration  for  the  Independents  and  the  expulsion 
of  eleven  of  the  chief  Presbyterian  leaders  from  the  House 
of  Commons.  While  the  House  would  not  expel  them, 
the  terror-stricken  inhabitants  of  the  city  brought  such  a 
pressure  upon  them  that  they  withdrew,  and  the  Parlia- 
ment appointed  a  Committee  to  treat  with  the  leaders  of 
the  Army,  i.  e.,  with  Fairfax,  Cromwell,  and  Ire  ton.  These, 
however,  thought  that  their  best  course  was  to  treat  with 
the  King.  There  was  certainly  profound  statesmanship 
in  this  view,  and  they  now  gave  the  King  the  great  oppor- 
tunity of  his  life  to  save  his  throne  and  rule  thereafter  as  a 
constitutional  Prince.  They  asked  of  him  first  of  all  the 
recognition  of  the  freedom  of  religious  belief  and  worship, 
the  abolition  of  privileges  and  monopoly,  the  reform  of 
judicial  procedure,  the  cessation  of  arbitrary  taxation,  the 
reorganization  of  the  House  of  Commons  by  a  more  liberal 
suffrage  and  a  juster  distribution  of  seats,  the  triennial 
assembly  of  Parliament,  the  control  of  the  Army  and 
Navy  by  Parliament  for  ten  years,  and  the  nomination  by 
Parliament  of  the  Ministers  and  high  Officers  of  State. 

The  King  blindly  and  stubbornly  pursued  his  idea  of  bal- 
ancing the  Parliament  and  the  Army  against  each  other 
until  both  should  become  too  weak  to  resist  his  arbitrary 
power.  The  confusion  grew  at  every  moment.  The  Lon- 
don mob  invaded  the  Commons  and  forced  the  House  to 


2i6  GOVERNMENT  AND  LIBERTY 

recall  the  eleven  members  whom  a  previous  mob  had  re- 
quired it  to  expel.  A  large  number  both  of  the  Lords  and 
of  the  Commons  now  betook  themselves  to  the  Army, 
which  marched  into  London,  restored  the  fugitive  Lords 
and  Commoners  to  their  seats,  and  reopened  negotia- 
tions with  the  King.  Encouraged  by  the  open  conflict 
between  the  Parliament  and  the  Army,  the  King  resolved 
to  undertake  a  new  Royalist  movement.  He  escaped  from 
his  keepers,  fled  to  the  Isle  of  Wight,  took  refuge  with  the 
Governor  of  Carisbrook  Castle,  who  treated  the  Royal 
guest  as  a  prisoner,  but  who  did  not  prevent  him  from 
corresponding  with  the  Presbyterian  Chiefs  for  the  purpose 
of  inciting  another  movement,  which  might  result  in  the 
restoration  of  his  unlimited  power.  The  King  counted 
specially  upon  the  Scots,  who  in  their  extreme  Presby- 
terianism  preferred  the  King  to  the  Independents.  The 
Presbyterians  now  raised  the  King's  standard  in  many 
quarters  and  a  Scotch  Army  under  the  command  of  the 
Duke  of  Hamilton  advanced  into  England.  The  renewal 
of  the  war  in  this  sudden  and  reckless  manner  made  the 
Army  and  its  Chiefs,  Fairfax,  Cromwell,  and  Ire  ton,  des- 
perate, and  any  future  reconciliation  with  the  King  im- 
possible. In  August  of  1648  it  came  again  to  decisive 
battle  at  Wigan  and  Warrington,  where  the  Royalists  and 
Presbyterians  were  completely  routed.  The  Army  marched 
triumphantly  into  Edinburgh  and  reinstated  the  Duke  of 
Argyle  in  control  of  the  Kingdom,  and  then  turned  again 
to  the  South  to  deal  with  the  Parliament  and  the  King. 
The  Council  of  Officers  of  the  Army  demanded  electoral 
reform,  a  new  Parliament,  recognition  of  the  supremacy 
of  Parliament,  change  of  the  Executive  into  an  elective 
office,  and  the  bringing  of  the  King  to  justice.  Instead  of 
yielding  to  these  demands,  the  Parliament  turned  to  the 


THE  EFFORT  OF  EUROPE  217 

King.  The  Army  now  flung  aside  all  consideration  either 
for  King  or  Parliament.  It  invaded  the  House  of  Commons 
and  drove  out  all  the  members  except  the  Independents. 
It  seized  the  person  of  the  King  and  confined  him  at  Wind- 
sor. It  drove  the  Rump  House  to  enact  a  resolution  form- 
ing a  Court  of  Commissioners  for  the  trial  of  the  King, 
and  when  the  resolution  was  opposed  by  the  few  Lords  re- 
maining, it  prompted  the  House  to  resolve  and  declare: 
"That  the  people  are,  under  God,  the  original  of  all  just 
power;  that  the  Commons  of  England  in  Parliament  assem- 
bled— being  chosen  by  and  representing  the  people — have 
the  supreme  power  in  this  nation;  and  that  whatsoever  is 
enacted  and  declared  for  law  by  the  Commons  in  Parlia- 
ment assembled  hath  the  force  of  law,  and  all  the  people 
of  this  nation  are  concluded  thereby,  although  the  consent 
and  concurrence  of  the  King  or  House  of  Peers  be  not  had 
thereto." 

The  Commissioners  appointed  for  the  trial  of  the  King 
went  promptly  forward  with  their  work.  In  five  days  the 
process  was  finished  and  the  King  condemned  to  death  for 
tyranny,  treason,  and  murder.  On  the  3oth  of  January, 
1649,  a  masked  executioner  severed  the  Royal  head  from 
the  body  and  held  it  up  to  the  gaze  of  the  gaping  multitude. 

The  Revolution  had  reached  its  final  stage.  It  had 
swept  away  King,  Lords,  Church,  and  Courts,  and  nothing 
now  remained  but  an  unlimited  House  of  Commons  as  the 
sole  and  sovereign  representative  of  the  so-called  people, 
with  an  Army  to  do  its  bidding.  As  yet  the  Revolution 
had  done  absolutely  nothing  in  solution  of  the  great  prob- 
lem of  the  reconciliation  of  Government  and  Liberty. 
The  despotism  of  the  House  of  Commons  was  now  as 
complete  as  that  of  the  King  had  ever  been.  It  was  not 
even  more  benevolent.  Strangely  enough,  the  only  thing 


2i8  GOVERNMENT  AND  LIBERTY 

which  stood  in  the  way  of  its  practical  as  well  as  theoretical 
absolutism  was  the  Army.  The  Council  of  Officers  of  the 
Army  was  in  fact  a  truer  representative  of  the  nation  than 
was  the  Rump  Parliament.  The  Army  and  the  Council 
of  Officers  were  fully  aware  of  this,  and  they  insisted  upon 
the  dissolution  of  the  Parliament  and  the  election  of  another 
which  would  be  more  truly  representative  of  the  nation. 
The  Council  of  Officers  drafted  a  plan  for  such  dissolution 
and  new  election.  The  Parliament  took  up  the  plan,  and 
a  bill  in  practical  accordance  with  it  was  laid  before  it  for 
discussion,  but  it  became  soon  manifest  that  it  had  no  in- 
tention of  dissolving  itself.  The  campaign  in  Ireland,  the 
rising  of  the  Scots  in  favor  of  the  restoration  of  the  Stuarts 
and  the  Dutch  War  occupied  the  attention  of  the  Army 
for  the  next  two  years,  and  the  Parliament  still  held  on. 
By  the  beginning  of  the  year  1653,  the  demands  of  the  Army 
could  be  no  longer  unheeded  or  even  delayed.  The  House 
agreed  to  dissolve  in  the  following  November,  and  the 
Council  of  Army  Officers  agreed  to  a  reduction  of  the 
Army.  Blake's  Naval  victory  over  the  Dutch  in  February 
seems,  however,  to  have  given  the  House  fresh  courage. 
It  now  insisted  that  the  members  of  the  Rump  House  should 
all  hold  their  seats  in  the  new  Parliament,  and  should  be 
the  judges  both  of  the  election  and  the  fitness  of  the  other 
members.  The  Council  of  Army  Officers  regarded  such 
demands  as  dishonest  and  unendurable.  On  the  igth  day 
of  April,  1653,  Cromwell  strode  into  the  House  followed 
by  a  company  of  musketeers,  and  dissolved  it  by  military 
force.  There  was  now  no  Government  and  no  Sovereign 
left  in  England  except  the  Army  with  its  Council  of  Officers. 
This  Council  of  Officers  were  not  yet  ready,  however,  to  de- 
clare the  Army  to  be  the  permanent  Sovereign  of  England, 
and  they  themselves  the  permanent  Government.  They 


THE  EFFORT  OF  EUROPE       219 

still  preferred  to  regard  the  situation  as  temporary  and  ten- 
tative. They  proceeded,  therefore,  to  name  a  new  Council 
of  State  consisting  of  eight  Army  Officers  and  four  civilians. 
This  body  created  a  Constituent  Convention  of  one  hundred 
and  fifty-six  men  out  of  lists  nominated  to  it  by  the  various 
independent  religious  communities,  and  this  body,  known 
derisively  in  English  history  as  the  Praise- God-Barebones- 
Parliament,  undertook  the  work  of  giving  England  a  new 
Constitution. 

For  nearly  six  months,  from  July  to  December,  1653, 
this  strange  body  wrestled  with  the  great  problem,  and 
then  without  accomplishing  any  result  suddenly  dissolved 
itself  and  delivered  back  to  the  "Lord  General/'  that  is, 
to  Cromwell,  "the  powers  received  from  him."  This  Con- 
vention had,  however,  appointed  a  new  Council  of  State, 
and  this  Council  drafted  a  plan  called  by  them,  "The  In- 
strument of  Government,"  and  submitted  it  for  adoption 
to  the  Council  of  Officers  of  the  Army.  The  Council  of 
Army  Officers  now  felt  compelled  to  act  as  a  Constituent 
Convention  and  give  England  a  new  Constitution.  This 
Instrument  of  Government  which  they  now  adopted  pro- 
vided, first,  for  the  assembly  of  a  new  Parliament  consist- 
ing only  of  a  House  of  Commons  of  four  hundred  and 
sixty  members,  four  hundred  from  England,  thirty  from 
Scotland,  and  thirty  from  Ireland,  elected  by  male  citizens 
of  legal  age,  and  possessing  real  or  personal  property  to 
the  value  of  two  hundred  pounds  sterling,  excluding  only 
Catholics  and  those  who  had  actually  fought  for  the  King's 
cause,  and,  second,  for  an  Executive  Power,  entitled  a 
Protectorate,  which  it  conferred  on  Cromwell,  and  third, 
for  an  Executive  Council,  or  Council  of  State,  whose  mem- 
bers should  be  originally  appointed  by  the  Protector,  but 
no  member  of  which  could  be  removed  by  him  except  with 


220  GOVERNMENT  AND  LIBERTY 

the  consent  of  all  the  others.  The  Instrument  provided 
for  triennial  Parliaments,  which  alone  could  make  law  or 
impose  taxes,  and  limited  the  power  of  the  Protector  in 
matters  of  diplomacy  and  war,  and  the  appointment  of 
officers  and  the  disposal  of  the  military  and  naval  forces 
by  the  advice  and  approval  of  the  Council.  The  Govern- 
ment thus  set  up  was  considered  as  tentative,  requiring  a 
nunc-pro-tunc  ratification  by  the  Parliament  to  be  assem- 
bled under  the  provisions  of  the  Instrument.  The  elections 
to  this  Parliament  were  duly  held,  and  it  assembled  in 
September  of  1654. 

There  is  no  question  that  this  Parliament  was  fairly  rep- 
resentative of  the  nation,  excluding  only  the  relatively  few 
Royalists  who  had  served  in  the  King's  Army,  on  the  one 
side,  and  a  very  few  radical  democrats,  on  the  other.  The 
distribution  of  the  representation  was  also  fairer  than  any 
that  had  gone  before.  The  rotten  boroughs  and  pocket 
boroughs,  which  before  this  had  figured  so  largely  in  the 
Parliamentary  representation,  were  excluded  therefrom 
and  the  seats  which  their  representatives  had  formerly  oc- 
cupied were  now  held  by  members  from  Counties  and 
populous  towns.  And  finally  both  Scotland  and  Ireland 
were  for  the  first  time  participant  in  this  body.  Notwith- 
standing these  facts,  however,  Cromwell  assumed  from  the 
first  an  attitude  toward  it  which  was  bound  to  result  in 
strife.  Cromwell's  idea  was  that  this  Parliament  should 
consider  the  constitutional  questions  as  having  been  set- 
tled in  the  Instrument  enacted  by  the  Council  of  Army 
Officers  and  should  proceed  at  once  to  questions  of  legis- 
lative detail,  while  the  Parliament  considered  the  Instru- 
ment as  provisional  only  and  assumed  to  revise  this  as 
well  as  legitimize  it  by  its  approval.  Cromwell  met  this 
attitude  by  forbidding  any  member  of  the  Parliament  to 


THE  EFFORT  OF  EUROPE  221 

enter  the  House  without  giving  his  written  promise  not  to 
attempt  to  alter  the  Government  as  constructed  by  the 
Instrument.  No  King  of  England  had  ever  committed 
any  more  arbitrary  act  than  this.  One  hundred  of  the 
members  spurned  this  unheard-of  demand  and  remained 
outside.  The  others  gave  the  promise,  but  immediately 
proceeded  to  do  just  what  Cromwell  had  forbidden,  only 
in  a  manner  which  served  as  a  sort  of  loop-hole  of  escape 
from  downright  breaking  of  word.  Cromwell  was  not  the 
man,  however,  to  be  held  by  forms.  He  looked  straight 
into  the  substance  of  things.  In  January  of  1655  he  pro- 
nounced the  dissolution  of  the  body,  without  any  reference 
to  a  new  election  or  the  assembly  of  another  Parliament. 

From  a  legal  point  of  view  Cromwell's  position  was 
now  a  bald  usurpation  and  genuine  tyranny.  He  crushed 
all  resistance  in  Scotland  and  Ireland  and  also  in 
England  with  an  iron  hand  and  sent  the  ringleaders  of 
the  same  to  the  block.  He  divided  the  whole  country 
into  major-generalships  and  executed  the  ordinances  pro- 
mulgated by  himself  as  the  law  of  the  land  through  the 
Generals  appointed  by  himself  for  the  purpose.  When 
everything  had  been  subordinated  to  his  own  unlimited 
will,  and  everything  prepared  to  forestall  all  opposition, 
he  summoned  the  packed  Parliament  of  1657,  in  which 
he  controlled  the  majority  of  the  members,  whom  he 
forced  to  give  apparent  legitimacy  to  all  he  had  done 
and  was  doing.  Although  a  majority  of  the  members 
were  his  own  creatures,  still  he  allowed  no  member  to 
enter  the  House  without  his  written  pass.  It  was  from 
such  a  Parliament  that  Cromwell  secured  the  legitimation 
of  what  he  had  done  and  the  adoption  of  a  Constitution. 
This  Constitution  contained  provisions  for  a  Parliament 
of  two  Houses,  the  one  consisting  of  elected  members,  the 


222  GOVERNMENT  AND  LIBERTY 

other  of  members  to  be  appointed  by  Cromwell  and  his 
successors,  and  for  the  office  of  Protector  or  Executive. 
The  Parliament  undertook  to  restore  the  Kingship  and  to 
confer  it  upon  Cromwell  and  his  descendants  but  this 
plan  shipwrecked  upon  the  opposition  of  the  Army.  The 
Parliament  thought  that,  as  King,  Cromwell  would  be 
obliged  to  rule  less  arbitrarily  than  as  Protector.  Whether 
Cromwell's  reason  for  rejecting  the  Kingship  was  that  he 
desired  to  preserve  his  unlimited  power,  or  that  he  con- 
ceived the  prejudices  against  the  Kingship  were  too  deeply 
rooted  in  the  masses  for  its  successful  re-establishment,  or 
that  he  himself  was  too  sincerely  Republican  to  listen  to 
such  a  proposition,  can  hardly  be  determined  now.  His 
refusal  left  him  in  possession  of  a  power  more  despotic  than 
any  English  King  had  ever  wielded,  and  it  was  only  to  be 
expected  that  he  would  quarrel  with  this  Parliament  which 
had  come  into  being  as  his  own  creature.  It  broke  out  over 
the  question  of  the  title  to  be  given  to  the  members  of  the 
Upper  House.  Cromwell  assumed  to  settle  this  question 
himself  since  they  were  appointed  by  him.  He  called  them 
Lords.  The  Commons  resented  this,  and  Cromwell  dis- 
solved them  in  February  of  1658.  He  was  now,  however, 
rapidly  approaching  his  end.  The  irritation  in  which  he 
constantly  lived  was  telling  upon  him  more  and  more. 
He  suffered  with  continual  attacks  of  fever  and  on  the 
3d  of  September,  1658,  he  passed  from  earth.  So  great, 
however,  was  his  influence  that  his  naming  of  his  own 
weak  and  incompetent  son  Richard  as  his  own  successor 
was  universally  acquiesced  in. 

With  his  death,  however,  the  reaction  of  the  years  be- 
tween 1658  and  1688  had  actually  begun.  By  advice  of 
his  Council  the  new  Protector  summoned  a  Parliament 
under  the  system  of  election  obtaining  under  King  Charles. 


THE  EFFORT  OF  EUROPE 


223 


The  Cromwellian  system  of  Government  was  immediately 
made  a  subject  of  bitter  criticism.  The  Council  of  Army 
Officers  answered  immediately  with  a  demand  for  a  mili- 
tary man  as  their  Commander-in-Chief,  instead  of  the 
Protector,  who  was  only  a  civilian.  The  Commons  de- 
manded their  dissolution  and  they  demanded  the  disso- 
lution of  the  Commons.  The  Protector  yielded  to  the 
Council  of  Officers,  and  when  the  Commons  had  been  dis- 
persed, they  dispensed  with  the  Protector  and,  seizing  the 
Government  temporarily,  they  called  together  the  remnant 
of  the  Long  Parliament,  the  Rump,  which  Cromwell  had 
dissolved  by  military  force  in  1653.  Not  quite  one  hundred 
of  the  members  got  together  and  resumed  the  functions  of 
a  Parliament.  This  body  demanded  the  dismissal  of  two 
of  the  most  objectionable  of  the  Army  Officers.  These 
immediately  dispersed  the  Parliament  and  marched  their 
forces  northward  to  check  the  Scotch  Army  under  Monk 
marching  southward.  The  once  invincible  Army  of  Crom- 
well actually  melted  away  before  the  resolute  movement 
of  the  Scots  and  the  friendly  reception  with  which  they 
were  met  at  the  hands  of  the  English.  Monk  entered  Lon- 
don without  resistance.  The  members  of  Parliament  got 
together  again,  resolved  to  dissolve  and  ordered  a  new 
election  of  the  Commons.  This  new  body,  known  in  Eng- 
lish history  as  the  Convention,  at  once  began  preparations 
for  the  restoration  of  Royalty,  but  was  anticipated  by 
General  Monk  and  his  Scots,  who  had  already  recalled  the 
King. 

Making  his  own  declaration  of  principles,  Charles  II 
proceeded  from  the  Netherlands  to  England  and  landed 
amid  universal  acclaim  at  Dover  almost  at  the  moment 
when  the  Convention  was  voting:  "That  according  to  the 
ancient  and  fundamental  laws  of  the  Kingdom,  the  Govern- 


224  GOVERNMENT  AND  LIBERTY 

ment  is  and  ought  to  be,  by  King,  Lords,  and  Commons." 
The  concentration  of  all  power  without  limitation  in  the 
hands  of  a  single  body,  whether  that  body  should  be  King, 
Protector,  General-in-Chief,  Lords  or  Commons,  was  now 
universally  felt  to  be  incompatible  with  Liberty.  All  were 
now  conscious  that  the  Revolution  had  failed  to  solve  the 
great  problem  of  the  reconciliation  of  Government  with 
Liberty,  and  had  sacrificed  Liberty  to  Government  even 
more  completely  than  the  system  of  James  I  and  Charles  I 
had  done.  With  this  fruitful  experience  the  men  of  Eng- 
land, Scotland,  and  Ireland  must  begin  again  the  effort 
for  the  solution  of  the  great  problem. 

The  existing  Convention  set  immediately  about  the  work 
of  establishing  the  new  order.  By  an  Act  of  Indemnity 
and  Oblivion  it  barred  any  universal  persecution  for  polit- 
ical acts.  Only  thirteen  of  Charles  I's  Judges  were  executed 
and  only  twenty  persons  were  disqualified  from  holding 
public  office.  Likewise,  while  the  Crown  resumed  posses- 
sion of  the  Crown  domain  and  the  Bishops  and  Royalists 
gradually  slipped  back  into  their  old  estates,  the  titles  to 
all  property  acquired  by  purchase,  although  its  sale  may 
have  been  occasioned  by  fine  and  sequestration,  were  con- 
firmed by  the  Convention,  and  no  claims  for  compensation 
for  losses  sustained  by  the  former  owners  were  allowed. 
Star  Chamber,  High  Commission,  monopolies  and  arbitrary 
taxation  were  barred  from  revival.  The  sole  power  of  the 
Parliament  to  tax  was  firmly  fixed.  The  standing  Army 
was  disbanded,  the  King  being  allowed  to  keep  a  few  regi- 
ments only  as  his  bodyguard,  and  being  recognized  as  the 
Commander-in-Chief  of  the  militia.  A  revenue  of  one 
million  two  hundred  thousand  pounds  sterling  was  granted 
to  the  King  for  life,  and  one  hundred  thousand  pounds  more 
annually  for  his  surrender  of  his  feudal  rights  of  wardship 


THE  EFFORT  OF  EUROPE       225 

and  marriage.  The  Convention  was  by  large  majority 
Presbyterian,  but  when  it  dissolved  on  the  eve  of  the  elec- 
tion of  1 66 1  the  tide  of  the  reaction  was  flowing  high  and 
when  the  House  assembled  it  was  found  that  the  Cavaliers 
had  the  Parliament  within  their  grip. 

This  body  proceeded  now  to  more  reactionary  mea- 
sures especially  on  the  ecclesiastical  side.  It  admitted  the 
Bishops  to  their  ancient  seats  in  the  House  of  Lords.  It 
ordered  the  burning  of  the  Covenant.  It  required  all  its 
members  to  receive  the  communion  at  the  beginning  of 
the  session.  It  renewed  the  Act  of  Uniformity,  and  it 
denied  legality  to  all  ecclesiastical  authority  not  conferred 
by  a  Bishop.  The  Non-conformist  Clergy  were  swept  out 
of  their  position  and  the  restored  Anglican  Church  started 
forward  on  its  course  again  leading  to  the  principle  of  ab- 
solute submission  to  the  Royal  power. 

The  King  himself  did  not  at  first  appear  to  favor  the 
Parliamentary  Act  of  Uniformity.  He  caused  a  bill  to 
be  introduced  into  Parliament  which  allowed  the  King  to 
exempt  persons  from  the  penalties  of  this  Act,  who  could 
not  conscientiously  conform  to  it,  but  who  lived  peaceably 
and  performed  their  religious  devotions  in  their  own  way 
without  scandal.  It  was  perceived  that,  under  this  power, 
the  King  might  establish  toleration  for  Roman  Catholicism 
again,  which  was  in  fact  his  secret  purpose.  The  Non- 
conformists themselves  would  not  support  the  proposition. 
On  the  other  hand,  Parliament  forced  the  King  to  exile, 
by  Royal  order,  the  Roman  Catholic  Priests,  and  passed 
an  act  called  the  Conventicle  Act,  which  forbade  assem- 
blies of  more  than  five  persons  for  religious  worship  other 
than  the  Episcopalian.  This  Act  not  only  put  an  end  to 
Roman  Catholic  worship,  but  with  another  Act  requiring 
the  expelled  Non-conformist  Clergy  to  take  oath  never  to 


226  GOVERNMENT  AND  LIBERTY 

attempt  any  alterations  of  the  Government,  either  secular 
or  ecclesiastical,  it  put  an  end  also  to  Non-conformist  wor- 
ship. 

It  was  now  to  be  seen  whether  the  Restoration  with 
King,  Lords,  Commons,  Courts,  and  established  Church 
contained  the  forces  rightly  balanced  to  reconcile  Govern- 
ment with  Liberty.  The  pinch  was  first  felt,  naturally, 
.in  the  enforcement  of  religious  uniformity.  Thousands  of 
the  Non-conformists,  both  lay  and  clerical,  were  thrown 
into  prison  solely  because  of  their  religious  opinion,  until 
soon  the  sympathy  of  the  nation  was  roused  in  behalf  of 
tolerance.  The  question  now  was  what  part  of  the  govern- 
mental machinery  would  ally  itself  with  the  national  sym- 
pathy and  acquire  from  it  the  strength  not  only  to  protect 
individual  conscience  but  to  become  itself  supreme.  The 
Parliament  and  the  established  Church  stood  solidly  to- 
gether. The  individual  was  thrown  back  upon  the  King 
and  the  Royal  Courts,  and  this  is  about  the  same  thing  as 
saying  that  the  individual  was  thrown  back  upon  the 
King  alone  to  protect  him  against  the  religious  tyranny  of 
the  established  Church,  since  the  Judges  were  subject  to 
dismissal  by  the  King  at  his  own  pleasure.  This  was  soon 
to  prove  itself  a  worthless  reliance.  The  King's  insincerity 
in  his  policy  of  toleration  became  more  and  more  apparent. 

He  followed  secretly,  but  doggedly,  two  lines  of  conduct 
in  his  administration,  the  one  looking  to  the  restoration  of 
Catholicism  at  home  and  the  other  to  an  alliance  with 
Louis  XIV  in  international  politics.  The  two  lines,  how- 
ever, were  ever  converging  until  they  very  nearly  coalesced, 
for  friendship  with  the  absolute  Grand  Monarch  of  France 
meant  hostility  to  the  Protestant  Powers,  and  therefore  a 
subsidy  from  him  which  would  enable  Charles  to  dispense 
with  Parliament  and  proceed  with  a  freer  hand  in  his 


THE  EFFORT  OF  EUROPE 


227 


ecclesiastical  policy.  He  undid  the  union  with  Scotland 
and  Ireland  in  order  to  have  a  better  chance  for  the  re- 
establishment  of  Catholicism  and  Royal  absolutism  in 
these  countries.  He  tricked  his  Ministers  one  after  an- 
other as  to  his  real  purposes.  He  changed  the  Municipal 
Charters  in  order  to  pack  the  House  of  Commons  with  his 
adherents.  In  spite  of  Ministers,  Parliament,  and  Judges 
he  got  his  way  about  most  things  and  that  too  without 
coming  into  direct  conflict  with  the  principal  enactments  of 
the  Long  Parliament.  For  eighteen  years  he  worked  on 
until  he  seemed  so  near  upon  the  attainment  of  his  plans, 
that  he  began  to  drop  his  disguise.  The  obtaining  from 
Parliament  of  a  large  force  and  large  supplies  under  pre- 
text of  an  impending  war  with  France  and  then  allowing 
King  Louis  to  have  his  own  way  in  consideration  of  a  sub- 
sidy paid  by  him  left  the  French  King  with  the  mastery 
of  Continental  Europe  and  King  Charles  with  an  Army  of 
twenty  thousand  men  and  a  million  pounds  sterling  in 
his  treasury.  When  these  facts  began  to  be  known,  sus- 
picion of  the  ultimate  purpose  of  King  Charles  culminated 
in  the  assertion  by  Oates  and  Bedloe,  shady  characters 
both,  it  is  true,  that  there  existed  a  plot  for  the  restoration 
of  Roman  Catholicism  in  England  in  which  the  Queen  her- 
self was  implicated.  It  is  also  true  that  King  Charles  him- 
self was  designated  as  the  chief  victim  of  the  plot  as  he  was 
to  be  murdered  in  order  that  his  declared  Romanist  brother 
James  might  ascend  the  throne.  It  was  a  queer  and  con- 
tradictory statement,  but  it  manifested  the  suspicion  which 
universally  prevailed  that  there  was  something  rotten  in 
the  existing  situation.  King  Charles's  duplicity  was  on 
the  point  of  exposure  and  he  saved  himself  from  this 
humiliation  by  consenting  to  the  calling  of  a  new  Parlia- 
ment and  the  forming  of  a  new  Ministry. 


228  GOVERNMENT  AND  LIBERTY 

The  dread  of  the  revival  of  Romanism  finally  took  the 
shape  of  a  plan  to  exclude  James  from  the  succession.  The 
bill  engineered  by  the  Earl  of  Shaftsbury  passed  the  Com- 
mons. Shaftsbury's  project  contemplated  the  elevation  of 
the  Duke  of  Monmouth,  the  eldest  of  the  King's  natural 
children,  to  the  throne,  while  the  wiser  heads  were  for 
bringing  in  the  famous  William  of  Orange,  the  husband  of 
James's  daughter  Mary.  On  account  of  this  division  in 
the  views  of  the  members  of  the  King's  Council,  the  King 
was  able  to  defeat  the  bill  altogether  in  the  House  of  Lords 
and  hold  Parliament  in  abeyance  until  his  own  death  se- 
cured the  succession  to  the  Catholic  James. 

James  mounted  the  throne  in  February  of  1685,  pledging 
himself  to  protect  the  National  Church  and  preserve  the 
laws.  The  Parliament  which  he  summoned  proceeded 
from  the  electorate  which  Charles  had  prepared,  and  was 
overwhelmingly  Royalist.  With  such  encouragement  the 
new  King  drove  recklessly  onward.  He  increased  the 
standing  Army.  He  filled  the  offices  with  Roman  Catholics 
contrary  to  the  Test  Laws  of  Parliament.  He  restored 
High  Commission.  He  resumed  the  diplomatic  affiliation 
with  King  Louis.  He  prosecuted,  persecuted,  and  executed 
the  chief  opponents  of  his  arbitrary  rule,  until  at  last  the 
loyal  Royalist  Parliament  itself  revolted.  The  leaders  of 
the  Royalists  or  Tories,  of  the  High  Churchmen,  and  of 
the  Moderates  or  Whigs  joined  in  an  invitation  to  William 
of  Orange  to  come  over  and  assume  the  reins  of  Govern- 
ment, restore  English  Liberty,  and  protect  the  Protestant 
religion. 

In  November  of  1688,  and  with  an  Army  of  some  twelve 
or  thirteen  thousand  men,  William  landed  on  the  south 
coast  and  entered  Exeter.  The  nation  rose  to  assist  him 
and  James  fled  the  country,  after  having  endeavored  to  pro- 


THE  EFFORT  OF  EUROPE 


229 


duce  a  state  of  anarchy  as  his  final  legacy.  But  the  Lords 
present  in  London  assumed  as  Privy  Councillors  the  reins 
of  Government  temporarily  and  yielded  the  same  to 
Prince  William  on  his  arrival  in  the  City.  The  Lords 
supporting  the  Revolution  then  assembled  and  with  all 
persons  having  been  members  of  the  Commons,  who  could 
be  brought  together,  and  the  Aldermen  and  Members  of 
the  Common  Council  of  the  City  of  London,  formed  a 
provisory  Parliament,  both  Houses  of  which  invited  Prince 
William  to  assume  the  provisional  Government  of  the 
country  and  to  issue  a  call  for  the  election  of  delegates 
to  a  constitutional  Convention. 

This  body  met  in  January  of  1689,  and  with  the  existing 
House  of  Lords  undertook  to  reorganize  the  Government, 
re-establish  Liberty,  and  protect  the  Protestant  religion. 
After  some  hesitation  and  debate  they  elected  Prince 
William  and  his  wife  Mary,  daughter  of  the  fugitive  King, 
joint  sovereigns  and  vested  the  administration  of  Govern- 
ment in  the  hands  of  William  alone.  On  the  i3th  of 
February,  1689,  they  presented  to  the  sovereign  pair  the 
Declaration  of  Rights,  the  observance  of  which  by  them 
was  the  condition  upon  which  the  authority  to  govern  was 
vested  in  them.  First,  it  denied  to  the  King  the  powers 
to  dispense  with  the  execution  of  the  laws  or  demand  aids 
and  contributions  or  to  maintain  a  standing  Army  without 
the  consent  of  Parliament.  Then  it  claimed  the  full  free- 
dom of  discussion  in  both  Houses  against  all  Royal  inter- 
ference, as  well  as  against  interference  from  every  other 
quarter.  Then  it  asserted  the  right  of  every  subject  of  the 
realm  to  a  free  choice  of  the  representatives  in  the  House 
of  Commons,  to  freedom  of  petition  to  that  body  for  re- 
dress of  grievances,  and  to  even-handed  and  complete 
justice  from  the  Courts. 


23o  GOVERNMENT  AND  LIBERTY 

The  newly  elected  Sovereigns  assented  to  the  conditions 
and  formally  accepted  the  Crown.  The  Convention  Parlia- 
ment changed  the  Declaration  of  Rights  into  a  formal 
Constitutional  Statute  called  the  Bill  of  Rights,  and  added 
to  it  many  other  fundamental  principles,  among  them  the 
power  of  Parliament  to  depose  the  King,  change  the  laws 
of  succession  to  the  throne  and  choose  the  King  at  its 
pleasure,  and  the  Parliamentary  rule  of  an  annual  grant 
of  subsidies  and  an  annual  grant  of  the  authority  of  the 
King  to  hold  a  standing  Army,  through  the  form  of  the 
annual  Mutiny  Act. 

The  Revolution  of  1688  made  the  Parliament  supreme 
over  the  Crown,  as  it  was  already  supreme  over  the  Church. 
The  Courts,  being  still  a  branch  of  the  Royal  Administra- 
tion, came  now  also  to  be  subordinate  to  Parliament,  in 
the  sense,  of  course,  that  a  Parliamentary  Statute  took  pre- 
cedence of  a  judicial  decision,  and  that  Parliament  could 
by  impeachment  remove  any  Judge  from  office.  Inasmuch 
as  the  Convention  Parliament  then  transformed  itself  by 
a  simple  declaration  into  the  ordinary  Parliament,  we  have 
as  the  result  of  the  Revolution  of  1688,  the  sovereignty  of 
the  ordinary  legislative  body  in  the  Government. 

At  first  it  seemed  as  if  the  new  King  did  not  understand 
this  situation.  He  held  the  administration  of  law  and 
justice  in  his  own  hands  and  acted  through  officials  ap- 
pointed by  himself  and  responsible  only  to  himself.  He 
had  taken  his  Ministers  both  from  the  Royalists,  or  Tories, 
as  they  began  to  be  called,  and  from  the  Parliamentarians, 
or  Whigs,  as  they  now  began  to  be  termed,  and  they  had 
no  collegial  organization,  each  Minister  being  as  to  the 
other  the  independent  servant  of  the  Crown.  The  first 
years  of  King  William's  reign  were  full  of  misunderstand- 
ings and  of  conflict  between  the  Crown  and  the  Parliament, 


THE  EFFORT  OF  EUROPE 


231 


until  at  last  the  King,  at  the  suggestion,  it  is  said,  of  Robert 
Earl  of  Sunderland,  found  a  modus  vivendi,  which  mani- 
fested, however,  the  supremacy  of  the  Parliament  over 
the  Crown.  He  began  taking  all  of  his  Ministers,  or  heads 
of  the  administrative  departments  from  the  same  party, 
the  majority  party,  in  the  Parliament  and  then  gave  them 
a  collegial  organization,  which  finally  made  them  stronger 
than  the  Crown  itself.  In  consequence  of  this  arrangement 
the  factions,  so  to  speak,  in  the  Houses  became  fused  into 
two  great  parties,  the  ruling  party  and  the  opposition,  and 
the  English  system  created  by  the  Revolution  of  1688  de- 
veloped these  principles  in  detail  down  to  1832  without 
any  fundamental  changes.  From  1832  to  the  present  the 
English  Constitution  has  taken  on  its  most  modern  phase 
and  will  be  treated  in  the  next  chapter  of  this  book. 

Our  final  point  of  consideration  in  this  chapter  is  how 
this  new  order  of  authority  left  the  question  of  the  relation 
of  Government  to  Liberty.  The  answer  is  simple  and 
brief.  It  sacrificed  all  Individual  Liberty,  as  well  as  all 
governmental  agents,  to  the  supremacy  of  Parliament. 
The  benevolence  of  Parliament,  the  law-making  branch 
of  the  Government,  was  all  the  Individual  could  look  to 
for  the  definition  and  defense  of  his  Immunity  against  the 
arbitrariness  of  Government.  He  had  escaped  the  tyranny 
of  the  King,  but  had  fallen  under  that  of  the  Parliament, 
which  might  become  even  more  terrible  than  anything 
which  had  preceded  it.  In  a  word,  the  Revolution  of  1688 
had  failed  to  solve  the  great  question  we  are  investigating, 
the  reconciliation  of  Government  with  Liberty,  from  the 
constitutional  and  juristic  standpoint,  altogether,  and  had 
furnished  the  Liberty  of  the  Individual  only  the  political 
guarantee,  which  claims  that  the  legislative  branch  of  the 
Government  will  delimit,  protect,  and  defend  the  natural 


232  GOVERNMENT  AND  LIBERTY 

realm  of  Individual  Immunity  against  governmental  power. 
The  insufficiency  of  such  a  guarantee  is  now  revealing  itself 
in  every  direction. 

The  Revolution  on  the  Continent  must  be  treated  as 
beginning  in,  and  proceeding  from,  France.  We  may  re- 
gard the  absolute  Monarchy  in  France  as  having  become 
complete  as  to  its  emancipation  from  all  legal  limitations 
by  the  act  of  Louis  XV  in  arresting  and  exiling,  on  July 
19,  1771,  the  members  of  the  Parliament  of  Paris.  This 
was  the  body  of  Jurists,  which  held  the  power  of  giving 
final  legitimacy  to  the  King's  edicts  by  registering  them  as 
of  legal  force.  It  was  understood,  as  the  custom  of  the 
realm,  that  they  might  refuse  to  register  a  Royal  edict, 
but  that  such  refusal  might  be  overcome  by  the  King  him- 
self appearing  in  the  Parliament,  assuming  its  presidency 
and  ordering  registration.  Such  a  session  of  the  Parlia- 
ment was  called  a  "lit  de  Justice."  It  was  rare  that  such 
a  thing  ever  happened  and  it  roused  great  dissatisfaction 
when  it  did.  The  usual  order  of  things  was  that  an  edict 
of  the  King  should  be  regarded  as  contrary  to  the  his- 
torical Constitution  of  France  whenever  the  Parliament 
of  Paris  refused  its  registration.  When  now  Louis  XV 
abolished  this  institution  there  was  nothing  left  standing 
between  the  despotism  of  the  Royal  Government  and  the 
Liberty  of  any  person. 

Louis  XV  survived  this  deed  only  about  three  years  and 
one  of  the  earliest  acts  of  his  successor,  Louis  XVI,  was  to 
recall  the  exiled  Jurists  and  re-establish  the  Parliament 
with  its  ancient  powers  and  functions.  It  must  be  said, 
however,  that  the  King  was  not  probably  so  much  moved 
thereto  by  any  consideration  of  the  Liberties  of  his  subjects 
as  by  the  purpose  of  checking  the  movements  of  his  pro- 


THE  EFFORT  OF  EUROPE  233 

gressive  Finance  Minister,  Turgot,  who  was  proposing 
to  tax  the  property  of  the  Nobles,  even  almost  to  the  point 
of  confiscation,  in  order  to  restore  to  soundness  the  fear- 
fully disordered  finances  of  the  Kingdom.  At  any  rate, 
it  was  the  opposition  of  the  Parliament  to  the  plans  of 
Turgot,  which,  more  than  anything  else,  finally  induced 
the  King  to  dismiss  him.  He  was  followed  by  Necker 
the  Geneva  banker,  who  after  five  years  of  hesitation  and 
makeshift  was  driven  by  the  ever-increasing  need  and  de- 
moralization of  the  Royal  treasury  to  suggest  something 
much  of  the  nature  of  what  Turgot  had  proposed.  This 
caused  his  downfall  in  May  of  1781. 

During  the  period  of  Necker's  regime,  the  King  had, 
from  the  standpoint  of  the  preservation  of  his  Monarchy, 
made  the  great  mistake  of  aiding  the  American  Colonies 
in  their  War  of  Independence  against  England.  The  ex- 
periences of  his  soldiers  in  America  were  positively  demoral- 
izing to  Monarchic  institutions,  and  the  cost  of  the  under- 
taking brought  the  treasury  still  nearer  to  complete  bank- 
ruptcy. After  the  downfall  of  Necker  things  went  rapidly 
from  bad  to  worse.  Six  years  more  of  extravagance  and 
corruption  followed  when  Calonne  informed  the  King  that 
the  end  had  been  reached  upon  the  line  they  were  follow- 
ing and  that  he  desired  to  lay  a  statement  of  the  finances 
before  an  assembly  of  prominent  men  for  advice  and  assis- 
tance. The  King  called  such  a  body  together  in  the  year 
1787.  In  history  the  name  given  to  this  body  of  men  was 
the  Assembly  of  the  Notables.  Calonne's  plan,  as  proposed 
to  this  body,  was  the  subjection  of  the  Nobles  and  Clergy 
to  taxation,  the  abolition  of  the  road-making  duty  of  the 
peasants,  the  Corvees,  and  the  collection  of  the  revenues 
by  the  Royal  officials  instead  of  farming  the  same  to  pri- 
vate individuals.  This  was  virtually  coming  back  to  the 


234  GOVERNMENT  AND  LIBERTY 

scheme  offered  by  Turgot  thirteen  years  before.  It  was 
immediately  recognized  as  such,  and  the  poor  Minister, 
who  had  for  years  pampered  the  Court  and  the  privileged 
classes  in  order  to  gain  a  popularity  with  them,  which 
would  tide  him  over  the  crisis,  now  saw  himself  deserted 
and  despised  by  them  all  and  dismissed  by  his  Royal 
Master. 

Nevertheless,  the  Notables  felt  obliged  to  offer  the  sub- 
stance of  his  propositions  to  the  King,  who  sent  them  to 
the  Parliament  of  Paris  for  registration.  That  body  re- 
fused, declaring  that  the  Estates  General  alone  could  levy 
a  new  tax.  These  were  ominous  words  from  the  Parlia- 
ment of  Paris.  For  one  hundred  and  seventy-five  years, 
now,  there  had  been  no  meeting  of  the  Etats-Generaux, 
and  all  this  time  the  Parliament  had  registered  the  King's 
edicts  in  regard  to  taxation  as  well  as  to  other  things,  with- 
out making  any  such  representation  concerning  the  con- 
stitutional law  of  the  realm.  In  the  position  which  it  now 
assumed  it  can  hardly  be  regarded  as  having  been  sincere. 
It  was  more  probably  attempting  to  defend  the  Nobles, 
to  which  class  its  members  chiefly  belonged,  from  taxation 
by  Royal  edict.  But  it  had  given  expression  to  the  popular 
desire  for  a  legislative  body,  in  which  some  form  of  general 
representation  might  take  the  place  of  the  Royal  absolutism 
in  enacting  the  statutes  of  the  land.  The  demand  for  the 
assembly  of  the  Etats-Generaux  grew  from  day  to  day 
and  developed  into  such  a  popular  clamor  that  the  King, 
under  the  advice  of  Necker,  whom  he  had  recalled  to  the 
head  of  the  treasury,  summoned  them  to  meet  on  the  5th 
of  May,  1789. 

How  the  members  should  be  chosen,  whether  the  three 
orders,  Clergy,  Nobles,  and  Third  Estate,  should  sit  and 
vote  together  or  apart  and,  if  apart,  what  weight  each 


THE  EFFORT  OF  EUROPE  235 

Estate  should  have,  were  difficult  questions  to  settle,  so 
long  had  there  been  no  assembly  of  the  Estates.  Even 
the  collective  name  which  they  should  bear  was  disputable. 
The  lawyers  belonged  for  the  most  part  to  the  Third  Es- 
tate and  argued  for  double  representation  of  that  Estate, 
for  assembly  in  a  single  body  of  all  the  Estates,  for  vote 
therein  by  persons  and  not  by  Estates,  for  majority  de- 
cision, and  for  the  name  National  Assembly  for  the  whole 
body.  The  Parliament  of  Jurists  held,  however,  that  the 
three  Estates  should  sit  separately  and  vote  by  Estates. 
There  is  no  question  that  the  Parliament  was  correct  as 
to  the  precedent.  The  trouble  was  that  the  French  peo- 
ple of  1789  had  outgrown  the  precedent  of  1614  and 
would  have  no  more  of  it. 

The  King  yielded  so  far  to  the  popular  view  as  to  order 
the  choice  of  as  many  members  to  represent  the  Third 
Estate  as  both  the  others.  He  did  not,  however,  direct 
whether  the  three  Estates  should  sit  together  or  how  the 
voting  in  the  decision  of  questions  should  be  reckoned. 
At  the  first  meeting  for  the  opening  ceremonies  they  were 
brought  together  in  one  great  hall,  and,  strangely  enough, 
no  separate  hall  was  provided  for  the  Third  Estate  for 
their  succeeding  meetings.  On  the  day  after  the  opening, 
they  naturally  betook  themselves  to  the  large  hall  again 
and,  finding  this  closed,  to  the  tennis-court  and  waited, 
their  leaders  said,  for  the  members  of  the  other  Estates  to 
come  in  and  verify  the  elections.  Many  of  the  lower 
Clergy  and  a  few  of  the  Nobles  did  appear  and  threw  their 
lot  in  with  the  Tiers  Etat.  This  body  now  numbered  some 
seven  hundred  of  the  twelve  hundred  called  by  the  King 
to  represent  the  whole.  They  assumed  the  name  of  Con- 
stituent Assembly  and  proceeded  to  the  verification  of 
the  elections  of  the  members  from  all  the  Estates.  On  the 


236  GOVERNMENT  AND  LIBERTY 

23d  of  June  the  King  ordered  a  joint  session  of  the  three 
Estates  in  the  great  hall  and  there  scolded  the  Third  Es- 
tate roundly  for  its  presumptuous  conduct,  and  com- 
manded the  separate  meeting  and  voting  of  the  Estates. 
But  it  was  now  too  late  for  this.  When  the  King  retired, 
attended  by  the  Nobles  generally  and  the  Prelates,  the 
Commons  remained  seated,  and  when  the  Royal  Master 
of  Ceremonies  directed  them  to  withdraw,  Mirabeau  an- 
swered for  them  that  they  were  there  by  the  will  of  the 
people  and  would  retire  only  at  the  point  of  the  bayonet. 
The  Court  was  intimidated  by  this  bold  stand.  The  Duke 
of  Orleans  with  some  fifty  of  the  Nobles  went  over  to  the 
Third  Estate  and  on  the  27th  of  June,  four  days  after  the 
joint  session,  the  King  ordered  the  union  of  the  Estates  in 
a  single  body  and  procedure  therein  by  vote  of  the  majority 
of  the  members. 

The  body  was  now  the  Constituent  Assembly,  the  sover- 
eign body  of  the  Kingdom,  and  it  proceeded  to  form  a 
Constitution  for  France.  Behind  it  stood  the  Parisians, 
the  new  National  Guard,  and  the  organized  Clubs  of  the 
Revolutionary  parties,  while  the  Royal  troops  were  unre- 
liable and  more  than  half  inclined  to  fraternize  with  the 
Revolutionists.  The  danger  was  that  the  radical  populace 
of  the  city  of  Paris  from  its  vantage-ground  of  nearness  and 
compactness  would  overwhelm  both  the  King  and  the 
National  Constituent  Assembly. 

The  Assembly  hastened  to  form  and  adopt  a  Constitu- 
tion. It  contained  first  of  all  a  Bill  of  Rights  and  Immuni- 
ties of  the  Individual  against  all  governmental  power,  but 
it  created  no  means  and  power  for  protecting  this  realm 
of  Liberty  against  governmental  encroachment.  In  fact 
it  abolished  the  ancient  Judicial  body,  the  Parliament  of 
Paris,  which  might  have  exercised  that  function.  In  this 


THE  EFFORT  OF  EUROPE  237 

Constitution  of  1790,  the  Kingship  itself  was  not  even 
guaranteed  against  the  action  of  the  Legislature.  This 
body  was  made  to  consist  of  a  single  chamber  and  the 
Royal  veto  over  its  acts  was  made  suspensive  only.  A 
repetition  of  the  majority  vote  could  overcome  it. 

Meanwhile  things  were  rapidly  advancing  toward  the 
catastrophe.  The  Nobles  were  leaving  the  country.  The 
Parisians  stormed,  took  and  destroyed  the  Bastile,  finding 
just  seven  common  criminals  in  it  and  not  one  political 
prisoner.  The  women  of  Paris,  crazed  with  hunger,  marched 
to  Versailles,  invaded  and  intimidated  the  Assembly,  and 
carried  the  Royal  Family  with  them  back  to  Paris  and 
virtually  imprisoned  them  in  the  Tuileries,  while  the  peas- 
ants throughout  the  country  pillaged  and  burned  the  castles 
of  their  Lords. 

From  August,  1789,  to  April,  1791,  the  King  made  no 
attempt  to  leave  the  city,  and  when  one  day  in  the  latter 
part  of  this  month,  he  undertook  to  go  out  to  Saint-Cloud 
for  a  day's  shooting,  he  was  halted  by  the  mob  and  driven 
back  to  his  palace  prison.  From  this  time  the  thought  of 
freeing  himself  by  flight  from  the  unbearable  situation 
came  uppermost  in  his  mind.  On  the  night  of  the  2oth 
of  June  (1791)  the  Royal  Family  with  a  few  attendants 
escaped  from  Paris,  but  were  recognized  and  captured  a 
few  days  later  at  Varennes  within  twenty-five  miles  of  the 
German  forces  waiting  to  receive  them.  They  were  imme- 
diately brought  back  to  Paris  and  placed  under  strict  guard 
in  the  Tuileries,  and  the  King  was  temporarily  deprived 
of  his  powers  and  prerogatives.  He  turned  now  to  La- 
fayette, the  Commander  of  the  National  Guards,  as  his 
only  hope.  Lafayette  held  the  Parisian  mob  in  check  and 
defended  the  National  Constituent  Assembly,  which  had 
also  removed  to  Paris,  against  its  onslaughts.  The  Assem- 


238  GOVERNMENT  AND  LIBERTY 

bly  voted  an  amnesty  to  the  Varennes  fugitives,  restored 
the  King  to  his  functions,  and  his  freedom  within  the  city, 
and  revised  and  completed  the  Constitution,  which  was 
accepted  by  the  King  as  the  Constitution  of  France,  on 
the  29th  of  September,  1791. 

The  revision  went  no  further  in  the  solution  of  the  great 
problem  of  the  reconciliation  of  Government  with  Liberty 
than  the  original  draft.  It  contained  still  the  elaborate 
Bill  of  Rights  and  Immunities  for  the  Individual  against 
governmental  power,  but  it  created  no  means  for  making 
the  same  effective.  The  ordinary  Legislature,  of  a  single 
Chamber,  was  made  the  final  interpreter  of  the  Constitu- 
tion in  this  respect  as  well  as  in  all  other  respects.  What 
defense  that  would  be  to  Liberty  was  quickly  seen.  The 
members  of  the  first  Legislative  Assembly  were  immediately 
chosen  and  met  in  October,  1791.  It  was  seen  at  once  that 
the  new  body  was  far  more  radical  in  its  composition  than 
the  Constituent  Assembly  had  been.  In  the  heated  atmos- 
phere of  Paris,  with  its  mob  of  the  Forum  calling  itself 
the  people,  and  with  the  excitement  inspired  by  the  news 
of  the  approach  of  the  foreign  troops  marching  into  France, 
it  was  inevitable  that  the  rasher  elements  in  this  radical 
Assembly  should  gain  the  upper  hand,  and  that  the  Parisian 
mob  should  furnish  the  physical  power  for  the  realization 
of  the  most  extreme  measures. 

In  June  of  1792  the  populace  broke  into  the  Assembly  in 
collusion  with  its  extreme  elements,  the  Jacobin  members, 
overawed  it  and  then  invaded  the  King's  palace.  The 
King's  conciliatory  attitude  quieted  them  temporarily,  but 
on  the  loth  of  August  the  renewal  of  the  insurrection  pre- 
cipitated the  catastrophe.  The  Royal  Family  were  ar- 
rested and  incarcerated  in  the  Temple.  The  legislative 
body  disappeared  and  the  second  Constituent  Assembly, 


THE  EFFORT  OF  EUROPE 


239 


called  the  Convent,  composed  chiefly  of  Jacobins,  that  is 
extreme  radicals,  began  its  work.  It  assumed  unlimited, 
i.  e.y  sovereign  power,  abolished  the  Kingship,  proclaimed 
the  Republic,  abolished  the  Christian  Calendar,  i.  e.,  the 
Christian  religion,  and  beheaded  the  King.  It  formed  a 
new  Constitution,  that  of  1793,  but  never  put  it  into  opera- 
tion. Under  the  leadership  of  Dan  ton,  Robespierre,  and 
Marat,  it  established  and  for  three  years  practised  the  most 
terrible  and  revolting  tyranny  known  to  human  history. 
It  demonstrated  fully  what  an  unlimited  Legislature  and 
unrestrained  democracy  will  do  with  Individual  Liberty. 
A  day  without  fifty  heads  rolling  from  the  guillotine  was 
regarded  as  a  dull  day  by  the  so-called  people. 

Finally  universal  terror  brought  moderation.  Every 
man  feared  that  his  own  cruelty  would  come  back  to  him. 
In  a  fit  of  moderation  the  Convent  established  the  Consti- 
tution of  1795  and  dissolved.  This  Constitution  created 
a  Legislature  of  two  chambers  and  an  executive  board  of 
five  men.  It  did  nothing,  however,  for  the  establishment 
of  Individual  Liberty.  The  Directorial  system  was  still 
governmental  tyranny,  exercised  with  a  little  more  benevo- 
lence. It  was  only  a  first  step  to  the  Consulate  of  Bona- 
parte, the  Military  Commander,  which  was  realized  by 
the  victorious  coup  of  the  i8th  of  Brumaire,  i.  e.,  November 
19,  1799. 

The  Constitution  of  the  Consulate,  in  its  two  forms  of 
the  Triumvirate  of  1799  and  the  sole  life  Consulate  of 
Bonaparte  of  1802,  conferred  practically  unlimited  power 
upon  Bonaparte,  and  did  nothing  for  the  constitutional 
Liberty  of  the  Individual.  In  comparison  with  what  had 
gone  before,  Bonaparte's  rule  was  both  benevolent  and 
beneficent.  He  was  not  only  successful  against  foreign 
foes,  but  he  centralized  the  administration  of  France  in 


24o  GOVERNMENT  AND  LIBERTY 

the  hands  of  the  Chief  Executive  and  established  the 
equality  of  all  before  the  law,  which  meant  in  last  analysis 
the  equal  subjection  of  all  to  the  rule  of  the  Consul,  and, 
after  1804,  to  the  completely  sovereign  rule  of  the  Emperor. 

Naturally  the  Imperial  system  did  really  nothing  toward 
the  solution  of  the  great  problem  of  the  reconciliation  of 
Government  and  Liberty.  Every  appearance  of  the  sort 
was  a  mere  veil  of  Imperial  despotism.  Nevertheless,  the 
education  received  by  the  masses  in  the  Army  prepared 
them  first  to  obey  and  then  to  govern,  and  in  the  long  run 
restored  through  military  discipline  a  self-control  most  valu- 
able to  civilization.  Moreover,  the  march  through  Europe 
of  the  Napoleonic  Armies  sowed  the  seeds  of  the  Revolu- 
tion broadcast,  so  that  it  became,  in  the  course  of  the  half 
century  following,  the  Continental  European  Revolution 
instead  of  the  French  Revolution  simply. 

The  overthrow  of  Napoleon  and  the  Imperial  system  in 
1814  by  the  Allied  Powers  of  the  Continent  and  England 
led  to  several  important  constitutional  results.  The  first 
was  the  restoration  of  the  Bourbons  to  the  throne  of  France 
in  the  person  of  Louis  XVIII  and  the  establishment  by 
him  through  Royal  edict  of  the  French  Constitution  of 
1814,  a  quite  elaborate  document  containing  a  Bill  of 
Rights  and  provisions  for  a  bicameral  Legislature,  which 
was  more  a  Council  to  the  King  than  a  real  lawmaking  body, 
the  members  of  one  Chamber  of  which  were  appointed  by 
the  King  and  those  of  the  other  elected  under  a  very  re- 
stricted suffrage.  Still  there  were  no  means  created  for 
defending  the  Liberties  and  Immunities  of  the  Individual 
against  the  encroachments  of  either  the  Legislature  or  the 
Executive.  So  far  as  any  such  means  were  concerned,  the 
Kingship  of  Louis  XVIII  was  as  absolute  as  that  of  Louis 
XVI  had  been.  Nevertheless,  it  was  a  great  gain  that 


I 


THE  EFFORT  OF  EUROPE  241 

there  was  a  Constitution,  and  that  it  contained  a  quite 
definite  realm  of  Individual  Liberty,  even  though  it  should 
remain  largely  unrealized  in  practise. 

The  theory  of  the  Charte  Constitutionnelle  of  1814  was 
that  it  was  granted  by  the  King.  Theoretically,  therefore, 
the  King  was  the  Sovereign  as  well  as  the  Executive  Gov- 
ernment in  the  French  system  of  1814.  It  was,  therefore, 
within  the  power  of  the  King,  as  Sovereign,  to  amend,  re- 
vise, or  even  annul,  the  Constitution.  The  French  nation, 
on  the  other  hand,  regarded  the  Charter  in  the  light  of  a 
contract  between  it  and  the  King,  and  looked  upon  its 
provisions  as  the  conditions  upon  which  it  accepted  him 
and  his  rule.  In  1830  the  King,  then  Charles  X,  attempted 
to  suspend  certain  of  these  provisions,  and  the  result  was 
the  July  Revolution  of  1830,  which  ended  by  the  Legisla- 
ture, provided  in  the  Charter  of  1814,  assuming  the  sover- 
eignty, drafting  and  adopting  a  new  Constitution,  and 
electing  Louis  Philippe,  Duke  of  Orleans,  King. 

The  Constitution  of  1830  contained,  likewise,  a  Bill  of 
Individual  Rights  and  Immunities,  but  no  means  of  main- 
taining them  against  the  power  of  either  the  Legislature 
or  the  King.  The  problem  of  the  reconciliation  of  Govern- 
ment and  Liberty  remained,  thus,  still  unsolved.  Eighteen 
years  more  of  social  and  national  development  passed  with- 
out any  corresponding  changes  in  the  Constitution.  As  I 
have  said,  this  Constitution  was  adopted  by  the  Legislature 
created  by  the  Charte  Constitutionnelle  of  1814.  This 
Legislature,  acting  thus  as  a  constitutional  Convention, 
exercised  sovereign  power.  It  was  itself  based  upon  a  very 
narrow  electorate,  which,  on  account  of  the  high  property 
qualification  demanded  for  membership  in  it,  numbered 
not  over  three  hundred  thousand  persons  for  the  whole  of 
France,  about  one  voter  to  one  hundred  persons.  After 


242  GOVERNMENT  AND  LIBERTY 

1840  the  demand  for  broadening  the  electorate  somewhat 
and  for  excluding  the  Royal  officials  from  seats  in  the  Legis- 
lature became  quite  general,  and  the  opposition  of  the 
King  to  these  moderate  reforms  precipitated  the  Revolu- 
tion of  1848. 

This  Revolution  was  confined  almost  exclusively  to  the 
City  of  Paris,  but  the  King  fled  rather  precipitately,  and 
the  Provisory  Government  which  formed  itself  and  assumed 
power  and  control  called  upon  the  people  to  elect  by  uni- 
versal suffrage  members  to  a  Constituent  Convention. 
This  Convention  framed  and  ordained  the  Constitution  of 
1848.  This  Constitution  contained  a  Bill  of  Individual 
Rights  and  Immunities  as  well  as  provisions  for  a  Govern- 
ment consisting  of  a  Legislature  and  a  President,  but  again 
no  means  for  making  these  Immunities  effective  against 
Government.  Louis  Napoleon  Bonaparte  was,  strangely 
enough,  chosen  President  by  popular  vote,  and  immediately 
began  the  work  of  discrediting,  browbeating,  and  black- 
guarding the  Legislature,  ending  in  his  coup  d'etat  of 
1851  and  in  the  formation  of  a  Constitution  by  him  vest- 
ing virtually  unlimited  power  in  the  hands  of  the  President. 
He  submitted  this  Constitution  to  the  direct  vote  of  the 
people,  i.  e.j  to  the  plebiscite,  and  they  approved  by  an 
overwhelming  vote.  The  following  year  he  asked  the 
people  to  make  him  permanent  Executive,  Emperor,  and 
received  again  their  approval  with  almost  complete  una- 
nimity. 

This  instrument  ignored  Individual  Liberty  altogether. 
It  failed,  therefore,  utterly  to  offer  any  solution  of  our 
problem  of  the  reconciliation  of  Government  with  Liberty. 

Finally,  the  overthrow  of  the  second  Napoleonic  Empire 
in  France,  occasioned  by  the  defeat  of  the  Imperial  forces 
in  the  War  of  1870  with  the  Germans,  led  to  the  formation 


THE  EFFORT  OF  EUROPE  243 

and  adoption  of  the  present  Constitution  of  the  French 
Republic  by  a  Constitutional  Convention,  the  members 
of  which  were  elected  by  universal  manhood  suffrage. 
This  Constitution  will  be  examined  from  our  point  of  view 
in  the  next  chapter  of  this  work. 

I  have  spoken  of  the  Revolution  of  1789  as  the  French 
Revolution.  This  is  true  in  a  narrow  sense  only.  France 
was  the  starting-point  of  a  Revolution  which  spread  in  all 
directions  producing  results  throughout  all  Europe,  and 
even  farther,  similar  to  those  effected  in  France.  Even 
before  the  triumphant  march  of  the  French  Armies  under 
the  command  of  Bonaparte  sowed  the  seeds  of  the  Revolu- 
tion all  over  the  Continent,  the  expulsive  power  of  its  prin- 
ciples had  made  itself  felt.  The  movements  of  Austria  to 
succor  the  Hapsburg  Queen  of  France  and  the  emigrant 
Nobility  provoked  the  French  nation  and  Government  to 
take  up  arms  against  the  Germans  in  April  of  1792,  and  the 
success  of  the  French  arms  against  both  Austria  and  Prussia 
carried  French  control,  and  with  it  the  ideas  of  the  Revo- 
lution, to  and  across  the  Rhine.  The  Austrian  Netherlands 
were  annexed  to  the  French  Republic  and  the  Swiss  Con- 
federation was  transformed  into  the  Helvetic  Republic  on 
the  French  model,  while  the  Dutch  Republic  was  in  like 
manner  changed  into  the  Batavian  Republic. 

The  leadership  of  the  French  arms  having  now  fallen 
into  the  hands  of  Bonaparte  the  work  of  the  political  trans- 
formation of  Europe  was  pushed  rapidly  forward.  In 
Italy,  after  chasing  out  the  Austrian,  Spanish,  and  Papal 
Governments,  he  founded  the  Cisalpine,  Ligurian,  Cispa- 
dine,  Tiberine,  and  Parthenopian  Republics,  covering  the 
whole  territory  of  the  peninsula  except  Venice.  After  be- 
coming Consul  and  then  Emperor,  Bonaparte  continued 
his  policy  of  exciting  the  people,  or  rather  the  lower  orders 


244  GOVERNMENT  AND  LIBERTY 

of  the  people,  to  revolt  against  their  existing  Governments. 
He  proclaimed  both  Liberty  and  equality,  but  in  practise 
only  equality  was  realized,  equality  before  the  Master  of 
the  World,  the  Emperor.  Equality  before  the  law  and 
Government  is,  however,  one  of  the  chief  elements  of  the 
Civil  Right,  and  the  Napoleonic  Codes  are  to  be  consid- 
ered as  having  accomplished  this  whenever  they  were  put 
in  force. 

Under  the  promise  or  pretext  of  liberating  the  vassals 
from  their  Feudal  oppressors,  Bonaparte  invaded  the  Holy 
Roman  Empire  of  the  German  Nation,  piercing  into  its 
most  Eastern  parts,  Austria  and  Prussia,  and  destroyed 
it,  erecting  in  its  place  the  Confederation  of  the  Rhine, 
composed  of  all  its  parts,  except  Austria,  Prussia,  Hoi- 
stein,  and  Pomerania,  into  which  Confederation  he  intro- 
duced the  principles  of  the  new  French  law.  On  the  south 
he  invaded  Spain  and  Portugal,  setting  aside  the  old  dy- 
nasties and  placing  his  own  appointees  in  their  stead,  and 
through  these  transforming  the  Feudal  inequalities  into  the 
dead  level  of  subjection  to  the  law  of  the  Empire.  As  he 
progressed  he  lost  sight,  more  and  more  completely,  of  the 
revolutionary  idea  of  Liberty,  and  gave  himself  up,  more 
and  more  exclusively,  to  realizing  the  principle  of  absolute 
equality  under  his  own  universal  despotism,  and  when  the 
nations  of  Europe  realized  that  his  ultimate  object  was 
World  Empire,  rulers  and  subjects  allied  themselves  to 
throw  off  the  yoke. 

The  restoration  of  the  old  authorities  in  Government 
and  in  Church  did  not,  however,  restore  the  old  Europe. 
Everywhere  the  ideas  of  national  sovereignty,  constitu- 
tional Government  and  Liberty  were  left  as  the  indestruc- 
tible deposit  of  the  great  upheaval,  and  when  the  restored 
Governments  began  again  the  work  of  ignoring  the  con- 


THE  EFFORT  OF  EUROPE 


245 


stitutional  Compacts,  the  Revolution  burst  forth  again,  in 
1820-1  in  Greece,  Moldavia,  Southern  Italy,  and  Spain,  in 
1830  in  France,  the  Netherlands,  and  the  Southern  and 
middle  states  of  the  German  Confederation,  and  in  1848 
again  everywhere.  The  transformations  produced  by  it 
in  France  have  been  already  recounted.  Elsewhere,  while, 
perhaps,  not  of  so  great  importance  as  in  France,  they  still 
mark  the  march  of  progress  toward  the  nationalizing  and 
constitutionalizing  of  the  European  states.  The  move- 
ments of  1820-1  in  Italy  and  Spain  were  crushed  by  the 
power  of  Russia,  Prussia,  and  Austria  in  alliance  for  the 
purpose  of  combating  the  Revolutionary  ideas  everywhere, 
but  resulted  in  the  independence  of  Greece.  The  move- 
ments of  1830,  however,  besides  the  overthrow  of  the  Bour- 
bon system  in  France,  left  the  independent  constitutional 
Kingdom  of  Belgium  and  the  constitutionalizing  of  the 
South  German  states  as  permanent  results,  started  anew 
the  agitation  in  Spain,  which  led  to  the  outbreak  of  1836, 
the  assembly  of  the  constitutional  Convention  and  the  for- 
mation and  adoption  of  the  Constitution  of  1837,  Spain's 
first  genuine  Constitution  given  by  the  people  to  the 
Monarch  instead  of  by  the  Monarch  to  the  people,  and 
gave  such  an  impetus  to  the  Chartist  or  Constitutional 
party  in  Portugal  under  the  lead  of  the  Count  of  Saldanha 
as  to  bring  final  success  in  the  establishment  of  constitu- 
tional Government  there  even  before  the  movement  of 
1848  set  fairly  in. 

With  the  upheavals  of  the  year  1848  all  Europe  west  of 
Russia  yielded  to  the  principles  of  the  Revolution,  which 
I  have  designated  as  national  independence,  constitutional 
Government,  and  Civil  Liberty. 

In  Italy  Charles  Albert,  the  King  of  Savoy,  Piedmont, 
and  Sardinia,  gave  his  subjects  a  liberal  Constitution  and 


246  GOVERNMENT  AND  LIBERTY 

offered  himself  as  the  leader  in  the  development  of  the 
national  state  with  constitutional  Government  for  Italy. 
The  outburst  was,  however,  too  violent  for  such  a  conser- 
vative course  and  democratic  Republics  sprang  up  in  the 
middle  and  south  of  the  peninsula.  In  the  German  Con- 
federation the  two  great  states,  Austria  and  Prussia,  were 
now  drawn  into  the  movement  and  Constitutions  of  Gov- 
ernment, containing  also  Bills  of  Right,  were  declared  in 
force  by  the  Emperor  Ferdinand  and  King  Frederic  William 
IV,  and  a  Convention  of  men  high  in  authority  and  pop- 
ular confidence  assembled  in  Frankfurt,  drafted  a  Consti- 
tution for  a  new  German  Empire,  and  offered  the  Imperial 
Crown  to  the  King  of  Prussia;  and  Switzerland  secured 
its  first  national  Constitution.  In  Denmark,  the  consti- 
tutional Convention,  the  first  genuine  constitutional  Con- 
vention of  Danish  history,  assembled  in  Copenhagen  in 
the  spring  of  1849  and  framed  the  instrument  which,  with 
a  few  amendments,  is  still  in  force,  while  Sweden-Norway 
held  steadily  along  the  course  of  constitutional  progress 
entered  upon  by  them  at  the  close  of  the  Revolution  of 
1789-1815. 

The  reaction  of  1850-1  checked  the  national  constitu- 
tional movement  momentarily  in  the  German  Confederation 
and  in  Italy.  The  Constitution  of  the  new  German  Em- 
pire formed  at  Frankfurt  in  1849  never  went  into  operation. 
The  union  of  Italy  under  the  House  of  Savoy  was  checked 
by  the  victories  of  Austria  over  the  Sardinian  King  Charles 
Albert,  the  Revolution  in  Hungary  was  crushed  by  the  aid 
of  Russia,  and  the  Spanish  Court  entered  upon  its  work 
of  restoring  the  ancient  regime. 

All  Europe  was  now,  however,  so  Revolutionary  in  spirit 
that  the  slightest  spark  would  fire  the  entire  social  structure 
again.  This  time  it  came  from  the  East.  The  oppression 


THE  EFFORT  OF  EUROPE 


247 


of  the  Turks  over  the  Christian  inhabitants  of  the  Osman 
Empire  led  to  the  declaration  of  a  protectorate  over  them 
by  Russia,  which  France  and  England  resisted  as  opening 
the  way  for  the  conquest  of  Turkey.  The  Crimean  War 
of  1853-5  followed,  and,  in  spite  of  the  defeat  of  Russia 
by  the  allies,  Wallachia  and  Moldavia  united  themselves 
to  form  Roumania,  and  attained  virtual  independence  of 
Turkey,  with  her  Constitution  of  1866,  formed  and  adopted 
by  a  real  Constituent  Convention,  and  with  a  Hohenzollern 
Prince  as  her  elected  King;  Servia  was  freed  from  its 
Turkish  garrison,  and  Greece  attained  her  Constitution 
of  1864,  and  elected  a  Prince  of  the  Danish  House  as  her 
King.  At  the  same  time,  Victor  Emmanuel,  King  of  Sar- 
dinia, was,  with  the  help  of  the  Emperor  Napoleon,  driving 
the  Austrians  out  of  Italy,  and  Prussia  was  driving  them 
out  of  Schleswig-Holstein,  and  then  out  of  the  new  German 
Union.  The  results  of  these  movements  were  the  unity 
of  Italy  under  the  Constitution  of  the  Savoy-Sardinian 
Monarchy,  the  unity  of  the  states  of  the  German  Confed- 
eration north  of  the  Main  under  the  lead  of  Prussia,  and 
the  understanding  between  Austria  and  Hungary  repre- 
sented by  the  constitutional  agreement  of  the  year  1867. 

In  Spain  also  the  Revolution  burst  forth  afresh  in  the 
year  1867,  expelling  the  Bourbons  and  creating  the  Con- 
stitutional Republic,  which  was  soon  modified,  however, 
by  the  adoption  of  the  Royal  Executive,  i.  e.}  the  executive 
holding  on  the  principle  of  hereditary  succession,  and  the 
restoration  of  the  Bourbons  on  the  basis  of  the  Constitu- 
tion of  1876,  the  present  Constitution  of  the  Kingdom. 

The  reaction  of  1850-1  was  also  felt  in  the  constitutional 
development  of  Portugal,  but  after  the  death  of  Queen 
Maria  da  Gloria,  the  Crown  yielded  to  the  demands  for 
Parliamentary  Government,  i.  e.y  for  administration  by  the 


248  GOVERNMENT  AND  LIBERTY 

Ministers  selected  by  the  Crown  from  the  major  party  in 
the  Chamber  of  Deputies.  As  under  such  administration 
the  country  became  more  democratic  the  Chamber  of  Peers 
was  changed  to  a  House  of  life  Peers  by  appointment  of  the 
Crown,  i.  e.,  appointed  by  the  Ministers  of  the  Crown. 
More  out  of  disgust  at  the  uselessness  and  extravagance 
of  the  Crown  and  the  dissoluteness  of  the  young  King,  than 
for  any  serious  political  reasons,  the  Revolution  of  1910 
drove  the  Royal  House  out  of  the  Kingdom,  and  established 
the  Republic  with  the  present  Constitution. 

In  the  Franco-Prussian  War  of  1870,  the  Revolution 
culminated  in  Germany  bringing  all  the  German  states 
North  and  South,  except,  of  course,  Austria,  which  had 
been  driven  out  of  the  North  German  Union  of  1866,  into 
the  new  Empire  resting  upon  a  popular  basis,  the  Con- 
stitution of  1871,  the  present  Constitution  of  the  great 
German  state. 

These  great  national  movements  excited  the  Christians 
of  the  Balkan  peninsula  to  revolt  in  1875  against  Turkish 
rule,  or  misrule,  and  in  1878  four  new  states  were  recognized 
as  belonging  to  the  European  concert  of  nations,  Roumania, 
Servia,  Bulgaria,  and  Montenegro,  while  Bosnia  and 
Herezgovina  were  placed  under  Austrian  administration 
and  have  now  been  incorporated  into  the  Austro-Hungarian 
Empire.  These  new  states  have  finally  succeeded  in  creat- 
ing for  themselves  constitutional  Governments  of  a  fairly 
liberal  nature. 

At  last  in  1905  the  autocracy  in  Russia  could  no  longer 
withstand  the  cry  of  the  people  for  participation  in  the 
Government,  and  for  a  domain  of  Civil  Liberty.  The  Czar 
issued  his  decree  creating  the  Duma  and  defining  its 
powers,  and  guaranteeing  a  considerable  sphere  of  In- 
dividual Freedom.  This  constitutional  edict  has  been 


THE  EFFORT  OF  EUROPE  249 

amended  from  time  to  time  until  we  have  the  present  Con- 
stitution of  the  Empire. 

At  the  same  time  Norway  broke  from  its  union  with 
Sweden  and  vindicated  its  right  to  independent  national 
existence,  holding  on  to  its  old  Constitution  changed  only 
in  respect  to  the  establishment  of  its  own  throne  and  King. 

The  net  results  of  the  whole  revolutionary  movement 
in  Europe,  beginning  with  the  dethronement  of  Charles  I 
in  England  and  closing  with  the  establishment  of  the  Rus- 
sian Duma,  have  been  the  organization  of  states  upon  the 
basis  of  national  development;  the  distinction  between  the 
sovereign  power  and  the  Government,  and  in  some  cases 
their  separate  organization;  the  creation  of  Legislatures 
representing  the  people  on  the  basis  of  a  liberal  and  in 
some  cases  a  radical  electorate;  the  investment  of  the 
Legislature  with  the  full  and  exclusive  power  of  making 
ordinary  law;  the  more  or  less  complete  control  of  the 
administration  of  the  Government  through  Ministries  rep- 
resenting the  Legislatures;  and  the  formulation,  as  part 
of  the  constitutional  law,  of  a  Bill  of  Rights  and  Immuni- 
ties of  the  Individual  against  the  power  of  Government. 
These  constituted  not  a  single  step,  but  many  steps,  of 
advance  in  solving  the  great  problem  of  the  reconciliation 
of  Government  and  Liberty.  States  based  upon  nations 
meant  states  in  which  a  consensus  of  the  people  concern- 
ing the  fundamental  principles  of  right  and  wrong,  of  Gov- 
ernment and  Liberty,  had  been  more  or  less  clearly  reached, 
states  where  the  sovereign  power  back  of  the  Consti- 
tution had  become  distinguished  from  the  powers  vested 
by  it  in  the  Government:  states,  therefore,  which  had  at- 
tained those  principles  of  representation  and  limitation, 
which  alone  mark  the  transition  from  arbitrary  to  consti- 
tutional Government.  These  advances  in  political  civiliza- 


25o  GOVERNMENT  AND  LIBERTY 

tion  had  also  produced  a  fairly  clear  conception  of  the 
domain  of  Individual  Liberty,  both  in  outline  and  content. 
The  Constitutions  produced  by  them  proclaimed  the 
exemption  of  a  large  sphere  of  individual  activity  from 
physical  compulsion,  whether  the  attempt  to  exercise  it 
should  come  from  another  individual  or  an  association  of 
individuals,  or  from  the  Church,  or  from  the  Government 
itself,  and  they  placed  the  Legislatures  in  the  position  to 
protect  the  same  against  the  Executive,  whether  Prince  or 
President,  through  its  control  over  the  Ministry  of  the 
one  or  through  its  power  to  impeach  the  other.  But  they 
discovered  no  constitutional  way  for  protecting  Individual 
Liberty  against  the  possible  tyranny  of  the  Legislature. 
Men  seemed  to  think,  notwithstanding  the  experiences  of 
the  French  Convent  of  1793,  that,  as  the  Legislature  rep- 
resented the  people,  it  would  protect  the  Individual  against 
oppression  from  any  and  every  quarter.  But  this  is  found 
to  be  true  only  where  the  suffrage  is  limited  to  men  of  in- 
telligence, character,  and  means,  and  eligibility  to  a  seat 
in  the  legislative  body  is  conditioned  upon  the  same  quali- 
ties. Where  universal  suffrage  is  the  source  of  legislative 
mandate  the  legislative  majority  is  a  far  more  consummate 
despot  than  any  King  or  Prince  has  ever  shown  himself 
to  be.  Against  such  a  Legislature  the  Individual  is  in  the 
most  helpless  condition  possible.  It  has  rarely  any  sense 
of  justice  and  is  almost  never  influenced  by  considerations 
of  mercy.  It  readily  becomes  the  instrument  through 
which  brute  force  tyrannizes  over  intelligence  and  thrift, 
and  seeks  to  bring  society  to  an  artificial  dead  level.  Until 
a  political  system  shall  have  provided  the  means  for  pro- 
tecting the  Individual  in  his  constitutional  immunities 
against  this  most  ruthless  organ  of  Government,  it  will 
not  have  solved  our  great  problem.  It  will,  even,  in  its 


THE  EFFORT  OF  EUROPE 


251 


transfer  of  the  balance  of  governmental  power  from  the 
Executive  to  the  Legislature,  have  placed  a  more  formida- 
ble obstacle  in  the  way  of  its  solution. 

Before  examining  critically  the  present  European  Con- 
stitutions upon  this  vital  point,  there  is  one  more  reflection 
to  be  made  regarding  the  course  of  the  Revolution  through 
the  different  parts  of  Europe,  which  will  be  helpful  in  many 
directions.  Every  student  of  history  is  struck  with  the 
fact  that,  among  the  more  or  less  Latinized  populations, 
the  Revolution  was  far  more  violent,  bloody,  and  radical 
in  its  results  than  among  the  peoples  of  Teutonic  stock; 
and  the  explanation  usually  given  for  this  very  important 
dissimilarity  is  that  the  hold  of  the  autocratic  power  was 
stronger  among  the  Teutonic  people.  To  me  this  is  not 
a  satisfactory  explanation.  The  greater  the  repression  the 
greater  is  usually  the  explosion.  We  must  go  far  deeper 
to  find,  in  my  opinion,  the  correct  explanation.  Certainly, 
from  the  period  of  the  Reformation  onward,  we  find  some- 
thing in  the  Teutonic  mind  which  distinguishes  its  methods 
and  results  very  widely  from  those  of  the  Romanic.  That 
something  the  Continental  Teutons  call  Vernunft — reason. 
Their  great  philosophers  and  publicists  of  the  seventeenth 
century  worked  out  in  thought  its  principles  of  life  and 
society,  both  public  and  private.  When  all  the  bonds  of 
external  power  had  been  loosed  and  broken  by  resistance, 
revolt,  and  revolution,  here  was  still  a  force  which  con- 
stituted a  compelling  and  controlling  behest.  Not  mere 
will  was  regarded  as  sovereign,  but  will  guided  by  reason. 
So  universal  was  this  philosophical  and  ethical  sense,  that 
passion  yielded  readily  to  the  consciousness  of  right.  While 
the  populace  rather  than  the  people  in  Latin  Europe  was 
destroying,  in  its  thirst  for  blood,  the  old  ruling  classes, 
which  contained  most  that  there  was  of  intelligence,  char- 


252  GOVERNMENT  AND   LIBERTY 

acter,  and  capacity,  or  putting  them  under  its  feet,  the 
Teutonic  nations,  especially  the  Germans,  were  finding 
the  way  under  the  "rule  of  reason"  to  conserve  all  classes, 
to  give  to  each  class  and  each  individual  the  due  and  proper 
place  and  weight  in  the  political,  civil,  and  social  state, 
and  to  employ  all  the  genius,  talent,  capacity,  and  energy 
within  their  bounds  for  the  highest  development  of  the 
Individual  and  for  the  general  welfare  of  the  Community. 
Radical  theories  and  reckless  applications  of  them  play, 
therefore,  a  far  less  role  in  the  course  of  the  Revolution 
in  the  Teutonic,  than  in  the  Romanic,  world.  The  Teu- 
tonic nations  have  felt  their  way  more  slowly  and  have 
followed  rather  the  method  of  constant  repair,  of  fitting 
the  new  into  the  old,  than  the  method  of  completely  de- 
molishing the  old  and  replacing  it  completely  with  the 
crude  and  untried  new.  When  one  compares  Kant  with 
Rousseau,  the  Hohenzollerns  with  the  Napoleons,  one 
cannot  help  feeling  the  genuine  conservatism  or  better 
conservationism,  if  I  may  coin  a  word,  of  the  one,  and  the 
reckless  destructiveness  of  the  other.  We  shall  be  con- 
tinually conscious  of  this  distinction  when  we  come  now 
to  examine  the  provisions  of  the  present  Constitutions  of 
the  European  states  from  the  point  of  view  of  the  great 
problem  whose  solution  we  are  so  anxiously  seeking. 


CHAPTER  X 

THE    PRESENT    CONSTITUTIONS    OF    THE    EUROPEAN    STATES 

EUROPE  has  now  twenty-five  states  excluding  Turkey. 
Of  these,  five  are  usually  termed  Republics,  i.  e.,  states 
with  elective  Executives  as  well  as  Legislatures,  viz.: 
Andorra,  France,  Portugal,  San  Marino,  and  Switzerland, 
and  twenty  which  are  usually  termed  Monarchies,  i.  e.y 
states  having  hereditary  Executives,  viz.:  Austria,  Bel- 
gium, Bulgaria,  Denmark,  Germany,  Great  Britain,  Greece, 
Hungary,  Italy,  Lichtenstein,  Luxemburg,  Monaco,  Mon- 
tenegro, Netherlands,  Norway,  Roumania,  Russia,  Servia, 
Spain,  and  Sweden.  Of  these,  two  of  the  Republics,  An- 
dorra and  San  Marino,  and  two  of  the  Monarchies,  Lich- 
tenstein and  Monaco,  are  too  insignificant  to  be  considered. 
We  will,  therefore,  confine  our  investigations  to  the  other 
twenty-one. 

It  is  not,  of  course,  our  problem,  in  this  study  to  draw 
under  consideration  all  of  the  details  of  these  Constitu- 
tions. We  are  concerned  only  with  those  provisions  fix- 
ing the  domain  of  Government  and  that  of  Liberty  and 
adjusting  them  to  each  other. 

The  first  point  of  our  inquiry  is,  therefore,  whether  these 
Constitutions  or  any  of  them  rested,  in  the  first  place,  upon 
a  sovereign  power,  organized  back  of  both  Government 
and  Liberty,  independent  of  both,  supreme  over  both,  the 
originator  of  both  and  the  determiner  of  their  relations  to 
each  other,  and  whether  they,  in  the  second  place,  contain 
the  continuing  organization  of  such  a  power  for  the  future 
adjustments  of  these  two  domains  to  each  other. 

253 


254  GOVERNMENT  AND  LIBERTY 

Unless  we  can  find  this  basic  principle  and  institution 
in  the  historic  development  of  these  states  and  in  the  pro- 
visions of  these  Constitutions  then  we  need  go  no  further 
with  our  query  whether  they  have  solved  the  problem  of 
the  reconciliation  of  Government  with  Liberty.  Without 
this  primal  authority  in  constitutional  history  and  consti- 
tutional law,  there  can  be,  at  best,  only  a  truce  in  the  con- 
flict between  Government  and  Liberty,  but  no  genuine 
peace  between  them. 

A  cursory  study  of  the  original  formation  of  these  Con- 
stitutions reveals  the  fact  that  nine  of  them,  viz. :  those  of 
Austria,  Great  Britain,  Hungary,  Italy,  Russia,  Luxemburg, 
Montenegro,  the  Netherlands,  and  Sweden  proceeded  from 
the  existing  Governments  or  some  part  thereof,  the  first  six 
from  the  Crown  and  the  last  three  from  the  ordinary  Legis- 
lature. They  lack,  therefore,  the  primal  indispensable  pre- 
requisite, the  organized  Sovereign  back  of  both  Government 
and  Liberty,  for  the  solution  of  our  great  problem.  The 
Constitutions  of  the  other  twelve,  on  the  other  hand,  viz. : 
those  of  Belgium,  Bulgaria,  Denmark,  France,  Germany, 
Greece,  Norway,  Portugal,  Roumania,  Servia,  Spain,  and 
Switzerland  fulfil  in  their  origin  this  primal  condition,  all 
having  proceeded  from  an  authority  back  of,  and  supreme 
over,  both  Government  and  Liberty,  viz.:  the  nation  in 
sovereign  organization. 

This  almost  fatal  defect  in  the  formation  of  the  nine 
Constitutions  first  mentioned  may,  however,  in  time  be 
cured,  provided  the  Constitutions  contain,  and  provide 
for,  the  organization  of  a  continuing  sovereign  power,  sep- 
arate from,  independent  of,  and  supreme  over,  the  ordinary 
Government  and  the  Liberty  of  the  Individual  for  amend- 
ing and  revising  these  instruments.  On  the  other  hand, 
those  Constitutions  which  were  originally  created  by  such 


THE  EFFORT  OF  EUROPE 


255 


a  sovereign  power  would  be  hopelessly  disabled  from  effect- 
ing the  continuing  adjustments  between  Government  and 
Liberty  necessary  to  the  solution  of  our  problem,  from  age 
to  age,  unless  they  contain  provision  for  the  independent 
sovereign  organization  in  continuity.  Let  us  now,  there- 
fore, proceed  to  the  examination  of  all  these  instruments 
from  this  most  fundamental  point  of  view. 

In  the  first  place,  the  Constitutions  of  Great  Britain, 
Hungary,  Italy,  and  Spain  provide  no  organization  of  the 
sovereign  power  independent  of  the  Government  at  all.  In 
England  and  Italy  there  exists  an  occasionally  invoked 
custom  of  making  a  constitutional  question  the  issue  at 
an  election  of  Legislative  members.  In  Spain  and  Hun- 
gary not  even  this  shadow  of  an  independent  sovereign 
power  exists. 

Every  other  state  of  Europe,  except  France  and  the 
small  states,  Bulgaria,  Greece,  and  Switzerland,  organizes 
the  sovereign  power  within  the  Government  or  some 
branch  thereof  instead  of  back  of  the  Government  and  in 
independence  of  it.  For  example,  the  continuing  sover- 
eignty in  the  Russian  Constitution  is  the  Czar,  since  the 
Legislature  cannot  even  consider  a  question  of  constitu- 
tional law  except  upon  his  initiative,  and  since  its  action 
thereon  is  subject  to  his  veto.  Likewise  in  the  Constitu- 
tion of  Montenegro.  The  other  Constitutions  with  the 
exception  of  those  of  Bulgaria,  France,  Greece,  and  Swit- 
zerland attribute  the  sovereign  power  to  their  Legislatures, 
usually  acting  in  some  different  way  in  the  making  of  con- 
stitutional law  from  that  employed  in  the  making  of  ordi- 
nary law,  as  by  the  requirement  of  an  increased  majority, 
or  of  simple  repetition  of  the  vote  by  succeeding  Legisla- 
tures, or  by  the  same  Legislature  in  succeeding  sessions, 
or  of  a  combination  of  both  of  these  methods.  None  of 


256  GOVERNMENT  AND  LIBERTY 

these  fulfil  the  primal  and  indispensable  condition  for  the 
solution  of  our  problem. 

We  are,  hence,  limited  in  our  inquiry  to  the  Constitu- 
tions of  Bulgaria,  France,  Greece,  and  Switzerland.  The 
Constitution  of  Bulgaria  organizes  the  continuing  sover- 
eignty of  the  state  in  a  National  Convention,  called  by  the 
King,  and  acting  upon  propositions  submitted  to  it  by 
the  ordinary  Legislature,  which  shall  have  been  voted  by 
a  two-thirds  majority  of  its  members.  That  of  Greece 
does  likewise  as  to  the  ratifying  body,  but  gives  the  initia- 
tive to  the  ordinary  Legislature  by  repetition  of  the  pas- 
sage of  the  proposition  at  separate  legislative  sessions. 
That  of  France  organizes  the  personnel  of  the  two  Houses 
of  the  ordinary  Legislature  into  a  National  Assembly  or 
Convention,  and  then  leaves  this  body  to  itself  in  both  the 
initiation  and  adoption  of  constitutional  measures.  The 
ordinary  Legislature  or  either  House  thereof  can,  however, 
prevent  the  organization  of  this  sovereign  body  by  simply 
not  passing  the  vote  which  authorizes  its  members  to  par- 
ticipate in  it.  In  fact  the  failure  of  one  House  to  do  this 
prevents  also  the  members  of  the  other  from  co-operating 
in  the  formation  of  the  sovereign  body.  Finally,  the  Swiss 
Constitution  provides  an  organization  of  the  continuing 
sovereignty  which  is  as  yet  the  last  word  in  the  constitu- 
tional development  of  Continental  Europe.  It  is  the  voters 
in  National  unity  and  Cantonal  unity,  so  that  decision  is 
reached  by  a  majority  of  the  voters  of  the  Nation,  voting 
upon  the  question,  provided  this  majority  contains  a  ma- 
jority of  the  voters  voting  on  the  question  in  a  majority 
of  the  Cantons.  The  Swiss  Constitution  also  provides  an 
independent  way  of  initiating  this  procedure  and  of  initi- 
ating the  proposition  to  be  laid  before  the  sovereign  body, 
viz. :  by  the  demand  of  fifty  thousand  voters  to  the  Legis- 


THE  EFFORT  OF  EUROPE 


257 


lature.  This  demand  may  be  made  in  the  form  of  a  propo- 
sition fully  drafted  for  amending  the  Constitution,  and  the 
Constitution  orders  that  it  be  submitted  by  the  Legisla- 
ture to  the  Nation  in  sovereign  organization  for  adoption 
or  rejection.  The  Constitution  provides,  it  is  true,  other 
ways  for  initiating  the  propositions  for  revision  or  amend- 
ment, ways  through  which  the  ordinary  Legislature  exer- 
cises more  or  less  discretionary  power,  but  inasmuch  as  it 
provides  this  one  independent  way,  independent  of  any 
discretionary  action  by  the  Government,  and  inasmuch  as 
it  requires  every  proposition  for  constitutional  change, 
however  initiated,  to  be  submitted  to  the  Nation  in  sover- 
eign organization  back  of  both  Government  and  Liberty, 
it  may  be  said  to  have  fairly  provided  this  primal  element 
and  fundamental  authority  for  the  solution  of  the  problem 
of  the  reconciliation  of  Government  and  Liberty. 

None  of  the  other  three  comes  so  near  to  a  satisfactory 
solution  of  this  element  of  our  problem.  The  Constitu- 
tions of  both  Bulgaria  and  Greece  fail  to  secure  the  inde- 
pendent action  of  the  sovereign  body  provided  by  them 
in  that  they  vest  the  initiative  in  the  ordinary  Legislature 
exclusively,  and  the  Constitution  of  France,  while  avoid- 
ing this  defect,  allows  each  Chamber  to  prevent  the  assem- 
bly and  organization  of  the  sovereign  body. 

The  Constitution  of  Switzerland  is,  therefore,  the  only 
one  among  those  of  all  the  states  of  Europe,  which  furnishes 
us  with  a  fair  foundation  and  a  fair  start  in  the  solution 
of  our  great  problem.  All  the  others  confound  the  sov- 
ereign body  with  the  Government  or  some  part  thereof  in 
such  a  way  as  to  leave  no  sphere  for  Liberty  into  which 
the  Government  may  not,  in  some  manner  and  degree, 
intrude. 

While  the  existence  of  a  sovereign  body,  separate  from, 


258  GOVERNMENT  AND  LIBERTY 

independent  of,  and  absolutely  controlling  over,  both 
Government  and  Liberty  is  the  first  condition  for  the  solu- 
tion of  our  problem,  as  already  explained,  still  we  must 
not  imagine  that  this  alone  is  sufficient.  Two  other  things 
at  least  must  be  carefully  considered  and  successfully  con- 
structed, the  two  main  creations  of  sovereignty,  viz.:  the 
domain  of  Civil  Liberty,  and  the  structure  and  powers  of 
Government  in  so  far  as  they  relate  to  the  maintenance 
and  protection  of  that  domain. 

Concerning  the  former,  first,  we  may  say  that  the  Con- 
stitutions of  all  the  European  states  with  the  exception  of 
those  of  Austria,  Great  Britain,  France,  Germany,  and  Hun- 
gary contain  a  well-defined  sphere  of  Individual  Immunity 
against  governmental  power,  what  is  generally  termed  the 
Bill  of  Rights.  It  is  easy  to  understand  why  the  Consti- 
tutions of  Great  Britain  and  Hungary  are  lacking  in  this  re- 
spect. These  states  really  have  no  Constitutions  in  the 
same  sense  that  the  others  have.  In  them,  as  I  have  al- 
ready explained,  the  ordinary  Legislature  exercises  un- 
limited power.  It  exercises  the  sovereignty.  Hence  any 
limitations  upon  it  in  behalf  of  the  Individual  would  be  only 
self-limitation,  that  is,  a  limitation  which  it  may  remove, 
so  far  as  the  Constitution  is  concerned,  at  its  own  pleasure. 
Such  a  limitation  is  in  law  no  limitation.  In  the  British 
and  Hungarian  systems  there  cannot  thus  be  such  a  thing 
as  a  constitutional  Immunity  of  the  Individual  against 
governmental  power.  The  freedom  of  the  Individual  is 
simply  legislative  permission  which  may  be  withdrawn  at 
any  moment  by  the  ordinary  Legislature  through  an  ordi- 
nary act.  It  is  quite  true,  as  a  matter  of  fact,  that  the 
Individual  enjoys  a  large  sphere  of  freedom  in  these  two 
states,  larger  than  in  many  others,  but  not  as  a  matter  of 
constitutional  law. 


THE  EFFORT  OF  EUROPE  259 

It  is  also  easy  to  understand  why  the  Constitutions  of 
the  German  Empire  and  of  the  Austrian  state  in  the 
Austro-Hungarian  Imperial  Confederation  contain  only  a 
fragmentary  and  incomplete  provision  for  this  general  realm 
of  Individual  Immunity  against  the  powers  of  Government. 
Both  of  these  states  have  the  system  of  Federal  Govern- 
ment and  of  that  kind  of  Federal  Government  which  vests 
only  enumerated  powers  in  the  central  Government.  In 
such  systems  it  is  not  always  considered  necessary  for  the 
instrument  which  organizes  the  central  Government  and 
confers  powers  upon  it  to  contain  also  a  denned  sphere  of 
Individual  Immunity  against  governmental  power,  since 
the  Constitutions  of  the  Commonwealths  within  these 
Unions  with  Federal  Governments  may,  and  generally  do, 
contain  such  provisions.  This  is  exactly  the  situation  in 
regard  to  the  Commonwealths  of  the  German  Empire, 
and  in  considerable  degree  in  regard  to  the  Provinces  of 
the  Austrian  state.  Nevertheless,  it  must  be  considered 
a  serious  defect  in  the  national  Constitutions  of  these  two 
great  Imperial  states  that  they  do  not  contain  provisions 
constructing  and  expressly  delimiting  a  sufficient  and  sat- 
isfactory sphere  of  Individual  Immunity  against  all  gov- 
ernmental power,  central  as  well  as  local.  Without  this 
they  certainly  cannot  be  regarded  as  having  furnished 
what  must  be  termed  the  second  indispensable  element 
in  the  solution  of  the  problem  of  the  reconciliation  of  Gov- 
ernment with  Liberty,  viz. :  the  concept  and  content  of  that 
realm  of  Liberty  as  a  part  of  their  national  constitutional 
law. 

It  is,  on  the  other  hand,  not  at  all  easy  to  understand  why 
the  French  state  with  its  more  perfect  conception  and  in- 
dependent organization  of  the  sovereign  power  back  of, 
and  supreme  over,  all  Government  and  with  its  centralized 


26o  GOVERNMENT  AND  LIBERTY 

system  of  Government  should  not  have  created,  in  its 
present  national  Constitution,  a  well-defined  sphere  of 
Individual  Immunity  against  governmental  power.  It  has, 
indeed,  been  said  that  this  Constitution,  formed  under 
great  stress  and  great  pressure  both  from  within  and  with- 
out, is  fragmentary  and  incomplete.  But  it  has  been 
amended  several  times,  and  may  be  rather  easily  amended 
at  any  time,  and  it  is  now  forty  years  old.  One  can- 
not help  the  feeling  that  the  French  statesmen  are  not 
disposed  to  give  the  Liberty  of  the  Individual  a  place  in 
their  constitutional  law.  The  French  have  so  often  had 
the  experience  of  the  excesses  of  Liberty  that  they  seem 
to  have  become  somewhat  shy  of  laying  any  constitutional 
limitations  on  Government  in  its  behalf.  There  must  be 
some  such  reason  for  this  great  defect  in  the  present  French 
Constitution.  The  first  act  of  the  French  National  Con- 
stituent Assembly  of  1789  was  the  enactment  of  the  "Decla- 
ration of  the  Rights  of  Man,"  on  the  26th  day  of  August 
of  that  initial  year  of  the  constitutional  development  of 
modern  France,  and  this  great  instrument  contains  as  its 
sixteenth  Article  these  momentous  words:  "Toute  societe 
dans  laquelle  la  garantie  des  droits  n'est  pas  assuree,  ni 
la  separation  des  pouvoirs  determinee,  n'a  point  de  consti- 
tution. "  In  plain  English  this  means  that  there  is  no  such 
thing  as  constitutional  Government  without  a  series  of 
constitutional  limitations  upon  its  powers  imposed  by  the 
sovereign  Nation  in  behalf  of  Individual  Liberty.  Accord- 
ing to  this  doctrine  the  present  Constitution  of  France  is 
no  Constitution  at  all  but  simply  a  Charter  of  Government. 
Let  us  now  turn  our  attention  to  the  contents  of  this 
realm  of  Individual  Liberty,  or  rather  of  Individual  Immu- 
nity against  the  powers  of  Government.  It  will  be  entirely 
safe  to  say  that  the  provisions  in  all  these  Constitutions 


THE  EFFORT  OF  EUROPE  261 

touching  this  subject  are  derived  more  or  less  directly  from 
the  famous  French  "Declaration  of  the  Rights  of  Man" 
passed  by  the  National  Constituent  Convention  of  the  year 
1789.  This  Declaration  covers  not  only  the  Civil  Liberty 
of  the  Individual,  but  contains  also  the  assertion  of  several 
fundamental  political  rights.  For  the  sake  of  logical  clear- 
ness this  part  of  the  Declaration  may  be  omitted. 

In  the  sphere  of  Individual  Immunity  against  the  power 
of  Government,  the  Declaration  places  the  rights  to  life, 
liberty,  and  property,  or,  stated  on  the  reverse,  the  Im- 
munity against  the  power  of  the  Government  to  take  the 
life,  liberty,  or  property  of  the  Individual.  The  French 
Assembly,  crude  as  was  its  view,  saw,  however,  that  this 
initial  statement  needed  both  definition  and  limitation. 
It  defined,  in  the  further  provisions  of  the  Declaration, 
personal  liberty  to  be  freedom  from  arbitrary  arrest,  from 
arrest,  detention,  and  prosecution  except  in  the  cases  and 
in  the  manner  prescribed  by  law,  that  is  from  arrest,  de- 
tention, and  prosecution  at  the  discretion  of  the  King  or 
his  officials.  What  we  now  call  the  Executive  branch  of 
the  Government  was  then  regarded  and  termed  the 
Government.  And  when  the  Declaration  uses  the  term 
law,  it  defines  the  same  as  being  the  expression  of  the 
general  will,  not  the  will  of  the  Government.  The  Decla- 
ration, however,  makes  no  distinction  between  constitu- 
tional law,  i.  e.j  law  made  by  the  sovereign  Nation,  and 
statute  law,  i.  e.,  law  made  by  the  Legislature. 

The  Declaration  defines,  in  the  second  place,  the  Im- 
munity of  the  Individual  in  the  security  of  his  property 
against  the  power  of  Government  to  mean  that  private 
property  could  be  taken  from  its  owner  only  for  public  pur- 
poses as  determined  by  law,  and  only  in  the  manner  de- 
termined by  law,  and  only  upon  just  compensation  being 


262  GOVERNMENT  AND  LIBERTY 

rendered  to  the  individual  owner  by  the  Government,  and 
that  no  contributions  or  taxes  should  be  exacted  from  the 
Individual  by  the  Government  except  such  as  had  been 
authorized  by  law,  by  the  general  will.  All  this  is  only 
a  verbose  and  rather  clumsy  way  of  saying  what  we  now 
express  in  a  single  sentence,  viz.:  "that  no  person  shall  be 
deprived  of  life,  liberty,  or  property  without  due  process 
of  law,"  which  must  not  in  criminal  matters,  at  least,  be 
retroactive.  The  Declaration  also  proclaims  the  Immunity 
of  the  Individual  in  his  religious  belief  and  worship  from 
the  power  of  Government,  in  so  far  as  the  same  may  not 
come  into  conflict  with  the  public  order  as  established  and 
determined  by  law.  It  further  proclaims  the  Immunity 
of  the  Individual  against  the  power  of  Government  in  the 
formation  and  expression  of  his  opinions  limited  by  re- 
sponsibility for  the  abuse  of  this  Immunity  as  determined 
by  law.  Finally,  it  proclaims  that  the  purpose  of  political 
association  and  of  Government  is  the  conservation  of  these 
Liberties  of  the  Individual. 

There  is  no  question  that  the  French  statesmen  drew 
most  largely  upon  English  history  in  their  construction  of 
this  famous  instrument,  and  it  is  also  probable  that  the 
Constitution  of  the  United  States  of  America  drafted  two 
years  before  this  "Declaration  of  the  Rights  of  Man"  ap- 
peared, exercised  some  influence  upon  their  thought. 

The  existing  Constitutions  of  the  present  states  of  Europe, 
except  those  of  the  five  above  mentioned,  contain  these 
Immunities  of  the  Individual  against  governmental  power 
and  most  of  them  have  extended  and  elaborated  the  same 
in  very  considerable  degree.  For  example,  all  sixteen  of 
these  Constitutions,  those  of  Belgium,  Bulgaria,  Denmark, 
Greece,  Italy,  Luxemburg,  Montenegro,  Netherlands,  Nor- 
way, Portugal,  Roumania,  Russia,  Servia,  Spain,  Sweden, 


THE  EFFORT  OF  EUROPE  263 

and  Switzerland,  reserve  to  the  Individual  the  right  of 
assembly,  that  is,  they  place  this  very  important  means  for 
the  attainment  of  a  consensus  of  opinion  and  a  common 
purpose  within  the  realm  of  Immunity  from  governmental 
interference.  It  is  generally  denned  and  always  meant 
that  such  assembly  to  be  within  the  bounds  of  the  Im- 
munity must  be  unarmed,  and  must  take  place  in  a  hall, 
building,  or  enclosed  place,  and  that  all  meetings,  on  the 
other  hand,  in  the  open  are  subject  to  police  permission 
and  control. 

Since  the  object  of  such  assembly  is  usually  to  air  some 
grievance  or  bring  some  pressure  upon  Government,  the 
right  is  usually  connected  with  the  further  one  of  petition- 
ing the  Government  for  a  redress  of  grievances.  All  of 
the  sixteen  Constitutions,  which  contain  the  provision  for 
the  right  of  assembly  also  contain  provisions  for  that  of 
petition.  Some  of  them,  as  that  of  Italy,  recognize  the 
right  of  petition  to  each  and  every  adult  person.  All  of 
these  sixteen  Constitutions,  except  only  that  of  Italy, 
contain  provisions  reserving  the  right  of  association  for 
all  lawful  purposes  to  the  Individual  against  the  power  of 
Government.  Italy  has  suffered  so  much  throughout  her 
whole  history  from  secret  associations  of  every  kind,  that 
it  can  excite  no  wonder  that  her  Constitution  omits  this 
right  from  the  realm  of  Individual  Liberty. 

All  sixteen  of  these  Constitutions  declare  the  home  in- 
violable and  immune  against  arbitrary  invasion  by  the 
officials  of  Government.  Searches  and  seizures  of  a  domi- 
ciliary nature  can  be  made  only  according  to  law,  i.  e., 
legislative  act,  and  the  officer  executing  such  law  is  for- 
bidden to  do  anything  not  authorized  and  commanded  by 
the  legislative  act. 

The  Constitutions  of  nine  of  these  sixteen  states,  viz.: 


264  GOVERNMENT  AND  LIBERTY 

Belgium,  Bulgaria,  Greece,  Luxemburg,  Montenegro,  the 
Netherlands,  Portugal,  Roumania,  and  Spain,  contain  pro- 
visions declaring  the  inviolability  of  correspondence  by 
mail  or  telegraph  to  be  an  Immunity  of  the  Individual 
against  governmental  power.  The  governmental  power 
here  meant,  be  it  always  remembered,  is  what  we  in  America 
term  the  Executive  power  of  Government. 

Finally,  the  Constitutions  of  two  of  these  states,  viz.: 
of  Norway  and  Portugal,  shield  the  Individual  against  the 
powers  of  Government  to  execute  upon  him  any  retroactive 
law.  As  we  have  already  seen,  the  Individual  is  by  all 
these  sixteen  Constitutions  exempted  from  the  operation 
of  any  ex-post-facto  law,  i.  e.,  any  retroactive  criminal  law. 
These  two  Constitutions  which  carry  the  Immunity  so  far 
as  to  shield  the  Individual  against  retroactive  laws  of  both 
civil  and  criminal  nature,  while  appearing  thus  to  be  ex- 
ceptions to  the  rule,  stand  upon  a  stronger  ground  of  reason, 
and  most  of  the  modern  states  of  Europe  and  America 
follow  this  principle  as  a  constitutional  custom. 

This  sphere  of  Immunity  of  the  Individual  against  the 
powers  of  Government  as  contained  in  the  most  modern 
European  Constitutions  is  the  product  of  centuries  of 
thought  and  of  struggle.  It  has  become  fairly  well  de- 
fined in  the  provisions  of  constitutional  law  and  fairly  well 
fixed  in  the  consciousness  of  the  Nations.  In  so  far  as 
the  delimitation  of  this  sphere  and  the  statement  of  its 
contents  are  concerned,  we  may  say  that  the  modern 
European  states  have  fairly  solved  our  problem  of  the  recon- 
ciliation of  Government  with  Liberty. 

But  the  final  factor  in  the  calculation,  the  final  element 
of  the  problem,  is  even  more  important,  if  possible,  than 
either  of  the  other  two,  for  without  satisfying  it  the  solu- 
tion of  the  problem  fails  almost  as  completely  as  though 


THE  EFFORT  OF  EUROPE  265 

one  or  both  of  the  other  two  had  never  received  any  de- 
velopment. This  final  element  or  factor  in  the  problem 
is  the  creation  of  such  guarantees  of  this  sphere  of  Indi- 
vidual Immunity  against  governmental  power  as  will 
make  it  genuinely  and  easily  effective. 

We  may  say,  at  the  outset,  that  the  only  guarantee  fur- 
nished by  the  Constitution  of  any  European  state  for  the 
Immunities  of  the  Individual  against  governmental  power 
consists  in  the  power  and  disposition  of  the  Legislature, 
the  ordinary  statute-making  organ  of  the  Government. 
The  theory  of  European  constitutional  development  in  the 
seventeenth,  eighteenth,  and  nineteenth  centuries  and  down 
to  the  present  moment  has  been  that  despotism  and  ar- 
bitrary rule  inhere  only  in  the  Royal  administration,  and 
that  the  ordinary  Legislature,  representing  the  citizens  or 
subjects  of  the  Government,  is  the  proper  and  sufficient 
organ  for  the  protection  of  the  Immunities  of  the  Indi- 
vidual against  governmental  power.  The  framers  of  the 
present  European  Constitutions  do  not  seem  to  have  sus- 
pected any  danger  of  encroachment  upon  these  Immuni- 
ties by  the  Legislature  itself,  or  at  least,  if  they  did,  do  not 
seem  to  have  discovered  any  escape  from  it. 

The  first  and  most  general  means  which  they  invented 
for  realizing  the  protection  of  the  Legislature  over  the 
Immunities  of  the  Individual  against  the  powers  of  the 
Government  or,  more  exactly,  as  we  Americans  would  say, 
against  the  Executive  branch  of  the  Government,  were  the 
constitutional  requirements  that  no  law  binding  the  ordi- 
nary citizens  or  subjects  could  be  passed  without  the  con- 
sent, at  least,  of  the  Legislature,  that  the  administration 
of  the  Government  should  be  carried  on  through  Ministers 
of  the  Crown  or  the  Executive  head,  and  that  these  Minis- 
ters should  be  individually  criminally  responsible  for  crimes 


266  GOVERNMENT  AND  LIBERTY 

and  misdemeanors  and  infractions  of  the  law  in  office. 
In  other  words,  the  usual  and  universal  remedy  against 
governmental  encroachment  upon  the  realm  of  Individual 
Immunity  in  the  European  states  is  the  power  of  impeach- 
ment of  the  Ministers  and  other  officials  by  the  Legislature 
or  by  a  Court  at  the  instigation  of  the  Legislature.  Let 
it  be  remembered  that  I  use  the  term  impeachment  in 
this  connection  in  the  popular  sense  of  trial  and  sentence 
instead  of  in  the  technical  sense  of  American  law,  viz.: 
arraignment  and  prosecution.  Taking  the  European  states 
in  alphabetical  order,  we  find  that  the  Constitution  of  Bel- 
gium provides  for  the  trial  of  the  Ministers  and  other  high 
officials  for  crimes  and  misdemeanors  in  office  by  the  Court 
of  Cassation,  the  highest  Court  of  Law,  on  accusation  by 
the  Chamber  of  Deputies;  that  the  Constitution  of  Bulgaria 
provides  for  their  trial  for  these  offenses  by  a  Court  estab- 
lished by  act  of  the  Legislature,  as  the  Legislature  consists 
of  a  single  House;  that  the  Constitution  of  Denmark  pro- 
vides for  their  trial  by  a  Royal  Court  composed  of  an  equal 
number  of  members  of  the  highest  regular  Court  of  Law, 
and  of  the  Upper  House  of  the  Legislature,  on  accusation 
by  the  Lower  House  of  the  Legislature;  that  the  Consti- 
tution of  the  German  Empire  makes  no  provision  what- 
ever for  impeachment,  but  that  the  Constitution  of  Prussia 
which  must  be  taken  with  that  of  the  Empire  in  regard 
to  the  matter  in  discussion,  as  I  have  already  explained, 
provides  for  the  trial  of  the  Ministers  for  violations  of  the 
Constitution,  as  well  as  for  treason  and  bribery,  by  the 
Supreme  Court  of  the  state,  on  accusation  by  either 
Chamber  of  the  Legislature;  that  the  Constitution  of  the 
French  Republic  provides  for  the  trial  of  the  Ministers 
and  of  the  President  himself  by  the  Senate  on  accusation 
by  the  Chamber  of  Deputies;  that  the  Constitution  of 


THE  EFFORT  OF  EUROPE  267 

Greece  provides  for  the  trial  of  the  Ministers  for  offenses 
in  office  by  a  High  Court,  constituted  for  the  purpose, 
consisting  of  the  President  of  the  regular  Court  of  Cassa- 
tion and  twelve  members  of  the  same  drawn  by  lot  by  the 
President  of  the  Legislative  Chamber,  on  accusation  by  the 
Legislative  Chamber,  as  Greece  has  a  unicameral  Legisla- 
ture; that  the  Constitution  of  Italy  provides  that  the 
Ministers  may  be  tried  by  the  Supreme  Court  of  the  King- 
dom, on  accusation  by  the  Chamber  of  Deputies;  that  the 
Constitution  of  Luxemburg  provides  for  trial  of  the  Min- 
isters by  a  Court  created  by  statute,  on  accusation  by  the 
Legislative  Chamber,  Luxemburg  having  only  one  Legisla- 
tive Chamber;  that  the  Constitution  of  Montenegro  pro- 
vides for  the  trial  of  the  Ministers  by  a  Court  composed 
of  the  members  of  the  Supreme  Court  of  the  Kingdom 
and  the  members  of  the  Council  of  State,  on  accusation 
by  the  Legislative  Chamber,  as  Montenegro  has  a  uni- 
cameral Legislature;  that  the  Constitution  of  Norway  pro- 
vides that  the  Ministers  may  be  tried  by  a  Court  composed 
of  the  members  of  the  Supreme  Court  of  the  Kingdom  and 
of  the  Upper  Chamber  of  the  Legislature,  on  accusation 
by  the  Lower  House  of  the  Legislature;  that  the  Consti- 
tution of  Austro-Hungary  provides  for  the  trial  of  the 
members  of  the  Common  Ministry  by  a  court  formed  by 
the  delegations,  i.  e.,  the  Legislative  body  of  the  Imperial 
Confederation,  on  accusation  by  the  Delegations,  and  that 
of  Austria  proper  provides  for  the  trial  of  the  Austrian 
Ministers  by  a  Court  created  by  act  of  the  Austrian 
Legislature,  on  accusation  by  the  Lower  House  of  the 
Legislature;  that  the  Constitution  of  Portugal  follows  that 
of  the  French  Republic  in  this  respect,  as  in  most  of  its 
provisions;  that  the  Constitution  of  Roumania  provides 
for  the  trial  of  the  Ministers  by  the  Supreme  Court  of  the 


268  GOVERNMENT  AND  LIBERTY 

Kingdom,  on  accusation  by  either  Chamber  of  the  Legis- 
lature; that  the  Constitution  of  Russia  provides  for  the 
trial  of  the  Ministers  for  crimes  and  misdemeanors  in  office 
by  the  regular  Judicial  tribunals  in  the  ordinary  manner 
and  procedure  obtaining  in  those  tribunals;  that  the  Con- 
stitution of  Servia  provides  for  the  trial  of  the  Ministers, 
charged  by  the  Legislative  Chamber  with  the  violation  of 
the  constitutional  Immunities  of  the  Individual,  by  the 
Council  of  State,  a  body  chosen  partly  by  the  King  and 
partly  by  the  Legislative  body;  that  the  Constitution  of 
Sweden  provides  for  the  trial  of  the  Ministers  for  crimes 
and  misdemeanors  in  office  by  the  Senate,  on  accusation 
by  the  lower  Chamber  of  the  Legislature;  and  that  the 
Constitution  of  Spain  provides  for  the  trial  of  the  Minis- 
ters by  the  Senate,  on  accusation  by  the  Chamber  of  Depu- 
ties; while,  finally,  the  Constitution  of  Switzerland  author- 
izes the  regular  Legislative  body  to  provide  by  statute  for 
the  trial  of  the  Ministers  on  charges  of  malfeasance  in 
office. 

Of  the  British  and  Hungarian  practises  I  have  not 
spoken  because  neither  has  a  written  code  of  constitu- 
tional law  and  each  has  long  ago  laid  aside  the  process  of 
impeachment  of  the  individual  officer  as  obsolete  under 
the  real  regime  of  Parliamentary  Government.  By  the 
term  Parliamentary  Government  is  intended  that  form  of 
relation  between  the  Executive  and  the  Legislature  whereby 
the  Ministry  is  solidly  responsible  for  its  official  acts  of 
every  kind  to  the  Lower  House  of  the  Legislature  and  in 
case  of  disagreement  between  itself  and  this  House  must 
either  resign  or  secure  a  dissolution  of  the  Chamber,  fol- 
lowed by  an  appeal  to  the  voters  to  elect  members  to  the 
new  Chamber  on  the  issue  in  dispute,  either  wholly  or  in 
connection  at  least  with  questions  which  do  not  relegate 


THE  EFFORT  OF  EUROPE  269 

it  to  a  minor  place,  and  must  then  yield  to  the  will  of  the 
new  Chamber  or  resign.  There  is  but  one  complete  ex- 
ample of  this  system  among  the  European  states  or  among 
the  states  of  the  world,  and  that  is  Great  Britain.  France, 
Portugal,  Spain,  Italy,  Greece,  and  Norway  have  made  a 
very  considerable  development  in  this  direction,  while 
Switzerland  deals  with  its  Executive  simply  as  an  agent 
of  the  Legislature,  with  no  will  or  policy  of  its  own  and 
no  joint  responsibility  for  any  political  policy,  a  seven- 
headed  Executive  Directory  with  a  presiding  officer,  all 
chosen  by  the  Legislature  by  formal  ballot  and  for  a  definite 
period  and  individually  retained  in  office  for  so  long  as  the 
Legislature  may  choose.  In  all  of  these  cases  the  Legis- 
lature can  perfectly  well  prevent  the  Executive  from  vio- 
lating or  encroaching  upon  the  domain  of  Individual  Im- 
munity against  governmental  power  without  having  re- 
course to  the  process  of  impeachment  of  the  Ministers  or 
other  officials.  A  vote  indicating  lack  of  confidence  is  all 
that  is  necessary  to  bring  on  a  Ministerial  crisis,  which 
must  always  finally  result  in  the  submission  of  the  Minis- 
try to  the  will  of  the  Legislature,  the  existing  or  the  newly 
chosen  one.  I  cannot  regard  this  process,  however,  as  so 
favorable  to  the  preservation  of  the  constitutional  Im- 
munity of  the  Individual  as  the  older  process  of  impeach- 
ment, because  the  bodies  which  usually  institute  and  try 
an  impeachment  are  not  only  far  more  intelligent  than  the 
average  voter,  but  have  also  the  advantage  of  deliberation, 
discussion,  and  comparison  of  views.  They  are  able,  thus, 
to  arrive  at  a  far  more  accurate  interpretation  of  the  con- 
stitutional domain  of  Individual  Liberty  and  consequently 
to  act  with  due  consideration  in  restraining  the  exaggera- 
tions of  governmental  power.  The  voters  are  far  more 
likely  to  veer  toward  despotism  at  one  moment  and  toward 


270  GOVERNMENT  AND  LIBERTY 

anarchy  at  another  than  to  advance  steadily  and  intelli- 
gently along  the  true  line  of  division  between  the  spheres 
of  Government  and  of  Liberty.  The  principle  and  process 
of  impeachment  as  contained  in  very  nearly  all  the  Euro- 
pean Constitutions  may,  therefore,  be  said  to  be  a  tolera- 
ble solution  of  the  problem  of  protecting  the  Constitutional 
domain  of  Individual  Liberty  against  the  encroachments 
of  the  Executive  branch  of  Government,  a  much  better 
solution  than  that  offered  by  the  practises  of  genuine 
Parliamentary  Government.  In  this  latter  system  of 
Government  the  Executive  and  the  Legislature  are  too 
closely  bound  together.  A  greater  independence  and  even 
a  certain  jealousy  must  obtain  between  them  before  the 
Legislature  can  be  relied  on  to  protect  Individual  Liberty 
against  the  tendency  of  the  Executive  to  exaggerate  its 
powers. 

The  more  serious  question,  however,  in  these  systems  of 
Government  is  the  protection  of  the  Liberty  of  the  Indi- 
vidual against  the  encroachments  of  the  Legislature  itself. 
When,  through  the  Revolutions  of  the  seventeenth  and 
eighteenth  centuries  the  Legislatures  were  first  established, 
they  were  intended  more  as  a  check  upon  Government  in 
behalf  of  Liberty  than  as  an  active  part  of  Government. 
Only  gradually  did  they  become  an  equal  participant  in 
Government,  and  then  the  dominant  factor.  So  grad- 
ually and  imperceptibly  did  this  come  about  that  it  has 
not  been  generally  remarked  that  they  themselves  were 
becoming  more  and  more  affected  by  the  exercise  of  gov- 
ernmental power,  and  less  and  less  reliable  as  a  defense  of 
Liberty.  To-day  every  political  scientist  knows  that  the 
Legislature  is  a  more  formidable  foe  of  Individual  Liberty 
than  the  Executive. 

Let  us  at  this  point,  however,  go  back  to  the  period  of 


THE  EFFORT  OF  EUROPE  271 

the  creation  of  the  Legislatures  and  examine  whether  in 
the  internal  structure  of  the  original  Legislatures  any  safe- 
guards were  provided  against  Legislative  despotism,  and 
then  whether  such  original  safeguards  have  been  in  the 
course  of  time  destroyed  or  weakened. 

These  safeguards  are  to  be  sought  in  the  cameral  arrange- 
ments and  relations  and  in  the  character  of  the  electorate. 
We  may  state  as  general  propositions  that  the  original 
Legislatures  were  bicameral;  that  the  Chambers  had  equal 
powers,  and  that  the  electorates  were  limited  by  property 
qualifications.  These  were  all  principles  which  tended  to 
make  the  Legislatures  considerate  and  conservative  of 
Individual  Liberty,  even  against  themselves.  The  bi- 
cameral Legislatures,  with  parity  of  powers  in  each  Cham- 
ber, were  far  less  likely  to  encroach  upon  the  sphere  of  In- 
dividual Liberty  than  a  unicameral  Legislature,  with  its 
more  concentrated  power  and  its  more  speedy  action;  and 
the  electorate  of  property-holders  exercised  a  strong,  con- 
servative influence  over  its  legislative  representatives. 

Let  us  now  examine  the  present  Constitutions  of  the 
European  states  to  find  whether  any  changes  have  taken 
place  in  the  essential  characteristics  of  the  legislative 
bodies  which  would  affect  their  power  and  disposition  in 
the  protection  of  the  Civil  Liberty  of  the  Individual  against 
their  own  arbitrary  action. 

In  the  first  place,  the  bicameral  system  of  the  Legisla- 
ture is  still  general  in  Europe  except  in  the  Balkan  states, 
Bulgaria,  Servia,  and  Montenegro,  in  Greece,  and  in  Lux- 
emburg, and  Greece  has,  in  addition  to  her  single  Chamber, 
a  Council  of  State  composed  of  members  appointed  for  a 
term  of  ten  years  on  nomination  by  the  Ministry,  whose 
function  it  is  to  give  expert  opinion  upon  every  proposed 
law,  which  opinion  touches  not  only  the  policy  of  the  pro- 


272  GOVERNMENT  AND  LIBERTY 

posed  enactment,  but  also  its  constitutionality.  The  Cham- 
ber may  disregard  this  opinion,  has  always  the  power  to 
do  so,  but  it  certainly  exercises,  in  most  cases,  a  certain 
moral  restraint  upon  arbitrary  action.  Servia  has  also  a 
Council  of  State,  some  of  whose  members  are  appointed 
by  the  King,  and  some  elected  by  the  Legislature,  but  its 
functions  relate  only  to  a  certain  control  over  executive 
action  and  it  can  exercise  no  restraint  of  any  kind  over 
legislative  action.  In  her  Constitution  of  1901  Servia  pro- 
vided herself  with  a  bicameral  Legislature,  but  both  the 
King  and  the  popular  Chamber  found  the  Senate  an  effec- 
tive clog  upon  hasty  movements  and  in  the  Constitution 
of  1903,  the  present  instrument,  it  was  dispensed  with. 
Bulgaria,  Montenegro,  and  Luxemburg  make  no  pretense 
of  a  limitation  upon  the  action  of  a  single  Chamber. 

We  may  say,  therefore,  the  bicameral  Legislature  is  still 
the  general  principle  of  legislative  structure  in  the  European 
states  and  that  the  independent  action  of  each  Chamber 
constitutes  a  certain  restraint  upon  rash  or  hasty  legis- 
lative action  and  a  certain  protection  of  the  Liberty  of  the 
Individual  against  unconstitutional  legislative  encroach- 
ment. 

But  the  effectiveness  of  this  restraint  depends  in  very 
large  degree  upon  the  parity  of  powers  in  the  two  Chambers. 
Has  this  been  preserved  during  the  constitutional  develop- 
ment of  the  last  century?  Let  us  see.  Of  course,  those 
states  having  unicameral  Legislatures  must  be  left  out  of 
consideration  upon  this  point,  viz. :  Bulgaria,  Servia, 
Montenegro,  Greece,  and  Luxemburg.  Of  the  other  six- 
teen only  five  still  uphold  the  parity  of  power,  both  in  the 
initiation  and  veto  of  all  projects  of  legislation,  in  both 
Houses  of  the  Legislature.  These  are  Austria,  Germany, 
Russia,  Sweden,  and  Switzerland.  Were  it  not  for  the  fact 


THE  EFFORT  OF  EUROPE 


273 


that  Switzerland,  the  most  radically  democratic  system 
among  the  states  of  the  world,  is  found  among  these  five, 
it  would  probably  be  claimed  that  parity  of  power  in  the 
Legislative  Chambers  is  associated  with  strong  executive 
power  and  is'  no  guarantee  of  Individual  Liberty.  As  it 
is,  however,  si.ch  a  claim  would  be  weak  and  worthless. 
We  must  loo}"  elsewhere  for  the  reason,  and  it  is  not  diffi- 
cult to  find.  These  are  the  states  in  which  the  men  of  in- 
telligence, character,  thrift,  and  wealth  still  occupy  the 
stations  in  the  political  society  which  their  services  and 
contributions  to  the  public  warrant.  These  are  the  states 
in  which  it  is  generally  understood  that  making  intelli- 
gence, character,  and  thrift  subject  to  ignorance,  vice,  and 
sloth  is  destructive  to  civilization  and  genuine  progress. 
In  these  states  the  higher  classes  have  retained  their  vigor 
and  courage  and  do  not  allow  themselves  to  be  over- 
borne by  numbers  merely.  The  spiritual  armor  which 
they  wear  gives  them,  when  they  employ  it  courageously, 
the  like  mastery  over  their  fellows  that  the  helmet  and 
breastplate  of  steel  gave  their  predecessors.  It  is  only 
when  they  seek  to  escape  the  duty  and  service  to  the  state 
which  their  qualities  and  possessions  require  that  they 
become  timid  and  servile.  Until  this  occurs  the  equality 
in  power  of  the  bodies  which  represent  them  with  those 
which  represent  a  more  numerous  constituency  is  not  seri- 
ously questioned.  The  history  of  the  political  power  of 
the  Nobility  in  the  Latin  states  and  in  Great  Britain  will 
fully  demonstrate  the  force  of  this  view. 

In  the  other  eleven  states  the  one  inequality  common 
to  them  all  is  that  the  budget  must  be  discussed  and  voted 
first  by  the  Lower  House  of  the  Legislature.  The  usual 
course  is  that  the  Ministry  make  up  and  present  the  budget 
and  that  the  House  accepts  or  rejects  in  toto  or  accepts 


274  GOVERNMENT  AND  LIBERTY 

with  modification.  By  the  budget  is  m^ant  all  financial 
measures,  the  levying  of  taxes,  the  making  of  appropriations, 
and  the  contracting  of  debts.  This  signifies  that  the  bulk 
of  the  taxes  rests  upon  the  constituencies  ,of  the  Lower 
House  and  that  they  who  pay  most  should  nave  the  first 
word  as  to  the  levy  and  appropriations,  a  rather  impregna- 
ble principle. 

From  this  single  inequality  common  to  the  Constitutions 
of  the  eleven  states  a  number  of  them  have  made  advances, 
some  of  a  slight  and  others  of  a  very  serious  character. 
The  Constitution  of  Belgium  provides  that  bills  fixing  the 
strength  of  the  Army  must  be  first  considered  and  voted 
in  the  Chamber  of  Deputies.  Inasmuch  as  the  Chamber 
of  Deputies  represents  those  who  must  render  the  largest 
part  of  the  military  service,  this  procedure  certainly  seems 
sound  from  this  point  of  view.  The  Constitutions  of  the 
Netherlands  and  of  Norway  and  the  practise  in  the  Hun- 
garian Legislature  vest  the  initiation  of  all  bills  or  projects 
of  law  in  the  Lower  House.  Inasmuch  as  the  members  of 
both  Houses  of  the  Norwegian  Legislature  are  chosen  by 
the  same  constituencies,  it  seems  simply  fanciful  to  confine 
the  initiation  of  the  laws  to  either  body  exclusively,  and 
among  such  conservative  nations  as  the  Dutch  and  the 
Hungarian  it  is  difficult  to  find  the  reason  for  any  excep- 
tion to,  or  limitations  of,  the  parity  of  power  in  the  two 
Houses  of  the  Legislature.  It  is  not  necessary  to  the  pur- 
poses of  this  study  that  we  should  seek  the  reason  for  the 
constitutional  facts.  They  are  cited  here  only  for  the  pur- 
pose of  showing  the  drift  toward  unicameralism  in  the 
states  of  the  present  day.  The  Constitutions  of  Norway 
and  Roumania  and  the  practise  in  the  British  Parliament 
place  the  entire  control  of  the  budget  as  to  its  initiation 
and  passage  in  the  Lower  House.  In  Norway  this  feature 


THE  EFFORT  OF  EUROPE  275 

of  the  constitutional  law  is  of  little  consequence  since  the 
members  of  both  Houses  are  elected  as  members  of  one 
general  assembly  and  when  they  are  all  thus  assembled 
in  a  single  body,  they  divide  by  lot  into  two  bodies,  one- 
fourth  forming  one  House  and  three-fourths  the  other,  and 
when  the  two  differ  in  opinion  they  reunite  as  one  body 
in  which  the  House  having  the  larger  number  of  members, 
fancifully  called  the  Lower  House,  or  popular  House,  gen- 
erally carries  the  day;  but  in  the  English  and  Roumanian 
practise  it  signifies  that  a  large  body  of  men,  paying  a 
large  part  of  the  taxes  are  literally  subjected  to  the  will  of 
a  larger  body,  which  no  longer  represents  exclusively  the 
taxpayers,  if  it  ever  did.  Finally,  the  Norwegian  Consti- 
tution and  the  recently  adopted  English  practise  provide 
for  the  complete  supremacy  of  the  Lower  House  in  all 
legislation.  As  has  been  explained,  this  is  not  of  much 
consequence  in  the  Norwegian  system,  since  this  system 
is  virtually  unicameral  under  a  veil  of  bicameralism,  which 
is  decidedly  transparent.  In  the  English  system,  on  the 
other  hand,  it  marks  a  distinct  advance  in  the  subjection 
of  the  aristocracy  to  the  democracy,  and  the  tendency  of 
democracy  to  unicameralism  in  the  Legislature. 

Let  us  examine,  thirdly,  the  provisions  of  the  Constitu- 
tions of  these  states  relative  to  the  qualifications  for  hold- 
ing the  suffrage  to  see  whether  there  may  be  in  that  any 
guarantee  of  the  Immunity  of  the  Individual  against  the 
powers  of  Government.  As  I  have  said,  constitutional 
Government  in  Europe  began  with  limited  suffrage,  but 
the  tendency  has  been  constantly  toward  broadening  the 
same  until  at  present  the  Constitutions  of  thirteen  of  the 
twenty-one  states  under  consideration,  viz.:  Austria,  Bul- 
garia, Denmark,1  France,  Germany,  Greece,  Italy,  Monte- 
negro, Norway,  Portugal,  Spain,  Sweden,  and  Switzerland 

1  See  note  on  p.  287. 


276  GOVERNMENT  AND  LIBERTY 

provide  universal  male  suffrage  as  the  principle  of  the  elec- 
torate of  the  Lower  House  of  their  respective  Legislatures. 
They  do  not  all  agree  in  regard  to  the  minimum  voting  age. 
In  fact  there  is  considerable  diversity  and  it  goes  far  enough 
to  affect  in  some  degree  the  character  of  the  electorate. 
Switzerland  goes  to  the  one  extreme  of  requiring  the  at- 
tainment of  only  the  twentieth  year  and  Denmark  to  the 
other  of  requiring  that  of  the  thirtieth.1  Between  the  two 
extremes  are  Bulgaria,  France,  Greece,  Montenegro,  and 
Portugal,  which  require  the  attainment  of  the  twenty-first 
year;  Austria  and  Sweden,  which  require  the  attainment 
of  the  twenty-fourth  year;  Germany,  Norway,  and  Spain, 
which  require  the  attainment  of  the  twenty-fifth  year; 
and  Italy,  which  requires  the  attainment  of  the  thirtieth 
year  generally,  but  admits  all  males  over  twenty-one 
years  of  age,  who  can  read  and  write  or  who  have  dis- 
charged their  duty  of  military  service.  The  other  eight 
states  require,  in  addition  to  the  qualifications  of  sex,  age, 
and  citizenship,  the  possession  of  a  small  property  or  in- 
terest therein  or  the  payment  of  a  small  tax,  so  slight 
in  amount  as  to  debar  from  the  exercise  of  the  suffrage  no 
one  of  any  real  worth.  The  divergencies  as  to  the  age 
minimum  obtain,  however,  also  among  these,  Hungary  re- 
quiring the  attainment  of  only  the  twentieth  year.  Great 
Britain  and  Servia  of  the  twenty-first,  Luxemburg,  Nether- 
lands, Roumania,  and  Russia  of  the  twenty-fifth,  while 
Belgium,  though  according  one  vote  to  all  male  citizens 
twenty-five  years  of  age,  seeks  to  avoid  the  radical  result 
of  it  by  giving  one  supplemental  vote  to  any  citizen  over 
twenty-five  years  of  age,  who  possesses  real  estate  to  the 
value  of  four  hundred  dollars  or  has  an  annual  income  from 
real  estate  or  from  Belgian  state  securities  to  the  amount  of 
twenty  dollars,  also  to  any  citizen  over  thirty-five  years  of 

1  See  note  on  p.  287. 


THE  EFFORT  OF  EUROPE  277 

age  having  children  and  paying  an  annual  house  tax  of 
five  franks,  and  two  supplemental  votes  to  any  citizen 
twenty-five  years  of  age,  who  bears  a  University  degree 
or  has  filled  an  office  or  practised  a  profession  requiring 
the  knowledge  implied  by  such  a  degree;  and,  finally, 
Norway  grants  the  full  suffrage  to  women  who  pay  inde- 
pendently, or  on  property  held  jointly  by  them  with  a  man, 
an  annual  income  tax  on  an  income  amounting  to  some- 
thing over  one  hundred  dollars  in  towns  and  something 
over  seventy-five  dollars  in  the  country  districts. 

All  of  the  European  states  having  bicameral  Legislatures, 
except  Norway,  seek  in  some  way  or  other  to  make  the 
Upper  Chamber  a  more  conservative  body  than  the  Lower. 
As  I  have  already  said,  Norway  elects  the  members  of  both 
Houses  as  a  single  body  and  then  separates  them  by  lot 
upon  their  assembly.  The  means  employed  by  these  states 
for  producing  this  more  conservative  Upper  House  are 
partly  relative  to  tenure,  partly  to  term,  and  partly  to  the 
qualifications  of  the  members  of  this  body.  Scarcely  in 
any  two  of  these  Upper  Houses  is  the  tenure  of  their  mem- 
bers the  same.  In  fact  there  are  few  of  them  in  which 
the  tenure  of  the  members  of  the  particular  House  is  uni- 
form. In  the  British  House  of  Lords,  the  Austrian  House 
of  Lords,  the  Hungarian  House  of  Lords,  and  in  the  Spanish 
Senate,  the  greatest  variety  of  tenure  is  to  be  found.  In 
the  British  House  of  Lords  the  number  of  members  holding 
by  hereditary  right  is  larger  than  in  any  of  the  other 
Upper  Houses  of  Europe.  In  a  House  of  six  hundred  and 
thirty-six  members  over  five  hundred  and  fifty  hold  by 
hereditary  right,  if  we  class  the  immediate  appointees  of 
the  King  among  them,  as  we  must,  since  the  King  cannot 
appoint  a  Lord  without  the  hereditary  tenure  attaching 
thereafter,  except  the  four  Law  Lords.  These  latter  hold 


278  GOVERNMENT  AND  LIBERTY 

for  the  life  of  the  appointee  in  every  case.  The  twenty- 
six  Ecclesiastics  hold  also  for  life  only,  as  do  the  twenty- 
eight  Lords  elected  by  the  peerage  of  Ireland,  while  the 
sixteen  Lords  elected  by  the  peerage  of  Scotland  hold  only 
for  the  duration  of  the  Parliament  to  which  they  are 
elected.  Hungary  follows  next  in  the  order  of  the  strength 
of  the  hereditary  element,  there  being  two  hundred  and 
twenty-nine  hereditary  Lords  in  the  House  of  Lords  or 
Magnates,  including  the  Archdukes  of  the  Royal  House 
two  hundred  and  forty-four,  some  sixty-seven  ex-omcio 
members,  the  High  Ecclesiastics  and  Judges,  some  sixty 
life  Lords  appointed  by  the  Crown,  and  three  representa- 
tives chosen  by  the  Legislature  of  Croatia  and  the  Gov- 
ernor of  Fiume.  Then  follows  Austria  in  the  same  order, 
with  a  House  of  Lords  consisting  of  some  eighty-one  mem- 
bers holding  by  the  hereditary  tenure,  including  the  fifteen 
princes  of  the  Royal  House  of  ninety-six  members,  of  seven- 
teen High  Ecclesiastics  ex-ofEcio,  and  of  some  one  hundred 
and  sixty  members  appointed  by  the  Crown  for  life.  And 
then  Spain  with  a  Senate  consisting  of  about  fifty  Grandees, 
who  hold  by  hereditary  right,  some  thirty  High  Ecclesi- 
astics and  High  Secular  Officials,  about  one  hundred  mem- 
bers appointed  by  the  King  for  life  and  one  hundred  and 
eighty  members  elected  by  the  Provincial  and  Municipal 
Governments,  the  Church,  the  Universities,  the  Academies 
of  Letters  and  Sciences,  and  the  highest  taxpayers,  with 
terms  of  ten  years.  The  next  class  of  states,  from  this  point 
of  view,  comprehends  Russia,  the  German  Empire,  and 
Denmark,  in  all  of  which  the  members  of  the  Upper  House 
of  their  respective  national  Legislatures  are  partly  ap- 
pointed and  partly  elected,  the  hereditary  element  having 
become  entirely  eliminated.  In  Russia  the  members  of 
the  Upper  House  are,  one-half  appointed  by  the  Emperor 


THE  EFFORT  OF  EUROPE       279 

for  life  and  one-half  elected  by  the  Provincial  Assemblies, 
the  Church,  the  Universities,  the  Academies  of  Science,  the 
commercial  and  industrial  exchanges,  and  the  Nobles  of 
Russia  and  Poland,  and  hold  for  nine  years.  All  members 
of  this  Chamber  must  be  at  least  forty  years  of  age  and 
all  of  them  must  have  University  degrees.  The  Bundes- 
rath  or  Federal  Council  of  the  German  Empire  is  composed 
of  members  appointed  by  the  Princely  Heads  of  the 
twenty- two  princely  States  of  the  Union  and  by  the  Gov- 
ernor of  the  Imperial  Territory  of  Alsace-Lorraine  and 
elected  by  the  Senates  of  the  three  City  States  of  the 
Union,  Bremen,  Hamburg,  and  Liibeck,  all  with  indefinite 
terms.  And  lastly  the  Danish  Senate  is  composed  of  twelve 
members  appointed  by  the  King1  and  fifty-four  members 
elected  by  the  voters,  the  appointees  of  the  King  holding 
for  life  and  the  members  elected  by  the  voters  holding  for 
eight  years.  The  third  class  of  states,  from  the  point  of 
view  of  the  construction  of  their  Senates,  comprehends 
those  in  which  all  the  members  are  appointed  by  the  Crown. 
These  are  Italy  and  Greece,  if  we  may  call  the  Greek 
Council  of  State  an  Upper  Chamber.  In  both  of  these  the 
members  are  appointed  by  the  King  for  life  terms.  The 
Italian  Constitution  requires  that  every  Senator  must  be 
at  least  forty  years  of  age  and  selected  from  persons  hav- 
ing certain  high  qualifications  prescribed  expressly  in  the 
organic  law.  The  Princes  of  the  Royal  House  of  full  age 
have  also  seat  and  voice  in  the  Senate.  The  fourth  and 
final  class  of  European  States  regarded  from  this  point  of 
view  comprehends  those  which  provide  in  their  respective 
Constitutions  a  Senate  composed  entirely  of  elected  mem- 
bers, viz.:  Belgium,  France,  Norway,  the  Netherlands, 
Portugal,  Roumania,  Sweden,  and  Switzerland.  In  the 
majority  of  these,  viz. :  France,  the  Netherlands,  Portugal, 
1  See  note  on  p.  287. 


28o  GOVERNMENT  AND  LIBERTY 

Sweden,  and  Switzerland,  local  Assemblies  elect  the  Sen- 
ators ;  in  the  Netherlands  and  Sweden  the  ordinary  Provin- 
cial Assemblies  or  Councils;  in  Portugal  the  ordinary 
Municipal  Councils;  in  France  Senatorial  Electoral  Col- 
leges composed  of  the  Councillors  of  the  Department,  the 
Councillors  of  the  Arrondissements  within  the  Depart- 
ment, representatives  from  each  Municipal  Council  in 
the  Department  and  the  members  of  the  national  Cham- 
ber of  Deputies  from  the  Department;  and  finally  in 
Switzerland  the  Senators  are  elected  either  by  the  Legis- 
latures of  the  several  Cantons  or  by  the  voters  in  any 
Canton  as  the  Cantonal  authorities  may  determine.  In 
Belgium,  on  the  other  hand,  the  Senators  are  chosen  partly 
by  the  Provincial  Councils  and  in  larger  part  by  the  voters 
who  are  over  thirty  years  of  age.  In  Roumania  they  are 
all  chosen  by  the  voters  who  belong  to  the  property  class, 
having  an  annual  income  from  realty  of  over  one  hundred 
and  fifty  dollars.  Finally,  in  Norway  the  Senators  are 
chosen  by  the  voters  who  choose  the  members  of  the  Lower 
House. 

Naturally,  where  the  Senators  are  elected  the  Consti- 
tution generally  fixes  the  qualifications  of  eligibility.  The 
Belgian  Constitution  requires  that  the  Senator  must  in  all 
cases  be  at  least  forty  years  of  age  and,  where  elected  by 
the  voters,  he  must  also  be  a  high  taxpayer  or  large  real- 
estate  owner.  The  tax  qualification  is  fixed  at  a  minimum 
of  one  thousand  two  hundred  francs  direct,  and  the  owner- 
ship qualification  at  a  property  with  a  minimum  annual 
income  of  twelve  thousand  francs.  The  French  Consti- 
tution requires  that  all  the  Senators  must  be  at  least  forty 
years  of  age.  The  Norwegian  instrument  requires  that 
the  members  of  both  Houses  must  have  attained  the  thir- 
tieth year  of  age.  The  Constitution  of  the  Kingdom  of 


THE  EFFORT  OF  EUROPE       281 

the  Netherlands  provides  that  all  Senators  must  be  at  least 
thirty  years  of  age  and  belong  to  the  class  of  highest  taxed. 
The  Portugese  law  follows  the  French.  The  Roumanian 
Constitution  requires  that  all  Senators  must  have  attained 
the  fortieth  year  of  age  and  be  possessed  of  an  annual  in- 
come of  some  two  thousand  dollars.  The  Swedish  instru- 
ment provides  that  to  be  eligible  to  the  Senatorial  mandate 
the  elected  must  be  at  least  thirty-five  years  of  age  and 
must  have  possessed  for  three  years  before  his  election 
real  property  to  the  assessed  value  of  some  thirteen  thou- 
sand five  hundred  dollars  or  an  annual  income  of  over 
eight  hundred  dollars.  Finally,  the  Swiss  Constitution 
leaves  the  question  of  Senatorial  eligibility  to  the  several 
Cantons. 

There  is,  lastly,  one  more  provision  to  be  found  in  al- 
most all  of  these  Constitutions,  which  was  doubtless  in- 
tended to  be  a  genuine  conservative  principle,  the  provi- 
sion declaring  that  Legislative  members  are  not  subject 
to  instructions  by  their  constituents.  Each  member  is 
declared  to  be  the  representative  of  the  totality  of  the 
population,  not  only  in  his  particular  district  but  in  the 
entire  country,  not  only  of  those  who  voted  for  him  but 
also  of  those  who  voted  against  him,  and  of  the  respective 
parties  to  which  they  all  belong,  and  finally  of  the  unen- 
franchised and  disenfranchised,  as  well  as  of  the  enfran- 
chised. He  is,  therefore,  expected  to  speak  and  vote  ac- 
cording to  his  own  judgment  and  in  the  interests  of  the 
entire  country  and  of  all  of  its  inhabitants,  instead  of  in 
the  interests  of  his  particular  constituency. 

Now,  do  any  or  all  of  these  provisions  concerning  the 
structure  of  the  modern  European  Legislatures  contain 
any  sufficient  guarantee  of  the  constitutional  Immunity 
of  the  Individual  against  the  encroachments  of  the  Legis- 


282  GOVERNMENT  AND  LIBERTY 

lature  itself  upon  this  sphere?    Let  us  give  this  question 
a  little  reflection. 

The  bicameral  system  of  the  Legislature  is  a  certain 
check  upon  all  legislation,  in  the  sense  of  course  that  con- 
sideration of  a  subject  by  two  bodies  must  proceed  more 
slowly  than  where  it  may  be  determined  by  either  of  them. 
This  does  not  mean  that  the  Upper  House  of  such  a 
Legislature  is  always  conservative  and  the  Lower  always 
radical.  It  is  possible  that  occasionally,  at  least,  the  op- 
posite situation  should  exist.  It  simply  means  that  gen- 
uine conservative  action,  which  is  also  genuine  progres- 
sive action,  is  more  likely  to  be  attained  through  double 
deliberation  and  procedure  than  through  single.  If  such 
be  the  case/ the  Individual  may  expect  somewhat  more  in- 
telligent consideration  than  from  a  Legislature  having 
only  a  single  Chamber.  He  has  at  least  a  double  chance  to 
convince  the  Legislature  that  it  is  treading  upon  a  do- 
main secured  to  him  by  constitutional  declaration.  He 
has  a  double  chance  to  appeal  to  its  benevolence.  This  is 
true,  of  course,  in  full  measure,  only  when  the  two  Houses 
of  the  Legislature  have  equal  power.  When  certain  sub- 
jects, especially  when  vital  subjects,  such  as  the  preparing 
and  enactment  of  the  budget,  are  excepted  from  the  power 
of  one  House  entirely  or  partly,  then  the  Individual  is 
deprived,  wholly  or  partly,  of  the  advantage  which  the 
bicameral  system  affords  his  constitutional  Immunity 
against  the  power  of  the  Legislature.  In  fact,  in  respect 
to  such  subjects  the  bicameral  system  is  displaced,  in 
greater  or  less  degree,  by  the  unicameral  system.  And 
lastly,  it  is  at  least  highly  probable  that  an  electorate  of 
the  legislative  members  and  a  legislative  membership  with 
qualifications  somewhat  farther-reaching  than  sex,  age, 
and  citizenship,  in  both  cases  or  in  one  only,  would  af- 


THE  EFFORT  OF  EUROPE       283 

ford  a  more  ample  protection  of  the  constitutional  Immu- 
nity of  the  Individual  against  the  power  of  the  Legisla- 
ture than  what  has  been  termed  manhood  qualifications 
and  manhood  eligibility.  It  would  depend,  of  course,  upon 
what  those  further  qualifications  might  be.  They  should 
be  intelligence,  impartial  judgment,  learning,  broadness  of 
view,  and  sound  moral  character  and  independence.  Such 
qualifications  in  the  electorate  and  in  the  membership  of 
the  Legislature  would  certainly  be  defensive  of  the  realm 
of  Liberty,  on  the  one  side,  and  of  the  domain  of  Govern- 
ment, on  the  other.  Such  an  electorate  and  the  legisla- 
tive members  chosen  by  it  would  understand  with  a  fair 
degree  of  clearness  the  equal  necessity  of  both  Government 
and  Liberty  in  the  solution  of  the  great  problems  of  civil- 
ization and  would  be  disposed  to  lift  these  fundamental 
conceptions  of  Political  Science  and  Constitutional  Law 
above  all  mere  considerations  of  party  politics  or  personal 
advancement. 

Now,  finally/ what  has  been  the  course  of  development 
upon  these  subjects  from  the  beginning  of  the  era  of  con- 
stitutional Government  down  to  the  present  moment? 
Taking  first  the  electorate.  The  earlier  instruments  pro- 
vided for  an  electorate  of  moderate  size  and  of  such  quali- 
fications as  gave  the  suffrage  generally  to  the  men  of 
weight  and  responsibility  and  to  such  only.  Very  soon, 
however,  discontent  among  the  unenfranchised  and  the 
search  by  the  politicians  for  a  new  following  set  the  course 
for  the  extension  of  the  suffrage.  Within  certain  bounds 
such  extension  of  the  suffrage  was  in  most  cases  natural 
and  even  necessary,  but  it  has  not  been  kept  within  these 
bounds.  An  unnatural  and  an  extreme  extension  of  the 
suffrage  has  occurred  in  most  of  the  European  states, 
chiefly  owing  to  the  intrigues  and  ambitions  of  the  poli- 


284  GOVERNMENT  AND  LIBERTY 

ticians  either  to  increase  an  old  following  or  to  create  a 
new  one,  until  now  the  legislative  constituencies  are  gen- 
erally dominated  by  those  who  have  the  lesser  stake  in 
the  welfare  of  the  state,  and  who  have  manifested  every- 
where the  disposition  to  make  use  of  the  Legislature  for 
the  curtailment  of  the  Immunity  of  the  Individual  against 
governmental  power,  under  the  claim  that  such  Immunity 
enables  the  intelligent  and  the  capable  to  get  the  advan- 
tage in  the  acquisition  of  wealth  over  the  ignorant  and 
the  incapable,  or,  as  some  of  their  most  fervent  spokesmen 
would  express  it,  "  enables  the  strong  and  artful  to  gain 
the  advantage  over  the  weak  and  conscientious."  Of 
course,  there  is  a  fair  advantage  which  the  intelligent  and 
capable  naturally  have  over  the  ignorant  and  incapable, 
and  this  advantage  cannot  be  taken  from  them  by  Gov- 
ernment without  injury  to  the  public  welfare;  and  there 
may  be  an  unfair  advantage  taken  by  the  intelligent  and 
capable  over  the  ignorant  and  incapable,  and  this  unfair 
advantage  generally  consists  also  in  the  use  by  them  of 
the  Government  for  their  enrichment.  But  the  present 
electorate  majority  in  most  of  the  European  states  does 
not  rest  upon  these  distinctions,  at  least  not  clearly.  It 
seems  to  be  assumed  that  the  intelligent  and  capable  are 
always  crafty  and  conscienceless  and  that  there  is  no 
natural  advantage  which  gives  them  more  of  the  goods 
of  this  world  than  their  less  intelligent  and  less  capable 
fellow  countrymen  possess.  The  electorate  majority  in 
most  of  the  European  states  of  to-day  seems  to  have 
little  conception  of  the  true  province  of  Individual  Lib- 
erty in  the  work  of  civilization,  and  to  regard  Govern- 
ment as  the  sole  instrument  which  the  state  should  em- 
ploy in  the  accomplishment  of  its  purposes.  It  manifests 
the  disposition  to  crush  the  higher  intelligence  and  the 


THE  EFFORT  OF  EUROPE  285 

higher  capacity  by  robbing  them  through  legislation  of 
their  natural  rewards.  It  demands  the  forcible  equality  of 
enjoyment  no  matter  how  great  may  have  been  the  dif- 
ferences of  achievement.  It  is  true  that  the  electorate  of 
the  Upper  Houses  and  the  qualifications  for  membership 
therein  appear  to  stand  in  the  way  of  such  a  consumma- 
tion. But  it  must  be  remembered  that  five  of  the  twenty- 
one  states  whose  Constitutions  we  are  considering  have 
done  away  with  the  Upper  House  altogether,  and  that 
eleven  of  the  other  sixteen  have  denied  to  the  Upper 
House  parity  of  powers  in  legislation  with  the  Lower,  some 
of  them  upon  one  or  more  subjects  and  some  of  them  upon 
all  subjects,  so  that  whatever  defense  of  Individual  Lib- 
erty there  might  have  originally  been  in  the  existence  and 
character  of  the  Upper  House  is  now  rapidly  vanishing. 
The  present  course  of  development  is  quite  clearly  toward 
the  unicameral  system  in  the  European  Legislatures,  how- 
ever scrupulously  the  form  of  the  bicameral  system  may 
be  preserved— --the  unicameral  system,  too,  whose  members 
shall  be  chosen  by  an  electorate  in  which  all  natural  dis- 
tinctions shall  be  ignored,  in  which  the  mere  biped  shall 
equal  the  sage,  and  who  shall  themselves  be  required  to 
be  no  more.  Such  a  Legislature  will  surely  be  no  de- 
fense for  Individual  Liberty  against  its  own  encroach- 
ments. Such  a  Legislature  will  always  seek  to  substitute 
its  own  unlimited  rule  for  the  constitutional  system  of 
limited  Government  and  defined  and  guaranteed  Civil 
Liberty.  At  its  very  best,  a  Legislature  is  no  reliable  de- 
fender of  Individual  Immunity  against  its  own  encroach- 
ments. At  its  very  best,  it  always  manifests  a  tendency, 
at  least,  to  encroach  upon  Individual  Immunity.  By  its 
very  best  I  mean  a  Legislature  whose  members  and  whose 
electorate  represent  a  society  which  has  not  yet  become 


286  GOVERNMENT  AND  LIBERTY 

divided  by  divergent  economical  interests  into  classes. 
Such  a  society  is,  in  its  most  advanced  form,  agricultural, 
practically  exclusively  so.  In  fact,  the  agricultural  so- 
ciety is  the  only  exclusive  form  which  can  in  any  con- 
siderable measure  satisfy  the  wants  of  society.  A  Legis- 
lature consisting  of  small  farmers  elected  by  small  farmers 
is  the  most  favorable  Legislature  to  the  preservation  of 
the  freedom  of  the  Individual  in  a  certain  sphere  against 
Governmental  power,  whether  exercised  by  an  Executive 
or  by  itself,  and  history  shows  that  even  such  a  Legisla- 
ture does  not  always  do  it.  Just  so  soon,  however,  as  the 
society  becomes  divided  into  classes  by  the  development 
of  divergent  economical  interests,  then  the  struggle  begins 
for  the  capture  of  the  powers  of  Government,  to  be  exer- 
cised in  the  furtherance  of  the  interests  of  a  class.  At 
first  the  more  intelligent  and  capable  generally  win  the 
day  and  encroach,  in  some  degree,  on  the  Immunities  of 
the  Individual,  but  finally  the  less  intelligent  and  capable, 
which  are  always  in  numerical  majority,  learn  the  lesson, 
and  seize  the  Government  and  then  through  legislation 
reduce  all  Individual  Immunity  against  governmental 
power  to  a  minimum,  to  say  the  least.  In  a  single  sen- 
tence, the  unicameral  Legislature  with  the  existing  elec- 
torate moves  along  towards  the  socialistic  state  and  the 
socialistic  state  does  not  recognize  any  sphere  of  Indi- 
vidual Immunity  defined  and  guaranteed  by  the  Constitu- 
tion against  the  powers  of  Government.  I  cannot,  therefore, 
consider  the  present  Constitutions  of  the  European  states 
as  offering  any  satisfactory  solution  of  the  great  problem 
of  the  reconciliation  of  Government  with  Liberty.  Liberty 
is  sacrificed  to  Government  in  them  all.  And  the  chief 
reason  why  the  Legislatures  have  not  to  this  time  realized 
their  absolute  powers  in  them  all  is,  in  my  opinion,  the 


THE  EFFORT  OF  EUROPE  287 

restraining  influence,  in  the  Teutonic  states,  of  a  rational 
philosophy  of  the  state  and  of  Government  and  in  the 
Latin  and  Slavic  states  of  the  Roman  and  Oriental  Chris- 
tian Churches.  There  is  some  influence,  in  this  respect, 
of  religion  and  Church  in  the  Teutonic  states  and  some 
influence  of  the  rule  of  reason  in  the  Latin  and  Slavic 
states.  But  the  chief  reason  for  the  actual  enjoyment  of 
a  certain  sphere  of  Individual  Immunity  against  the  con- 
stitutional absoluteness  of  the  Legislature  is,  I  believe,  as 
above  stated.  But  all  this  is  no  solution  of  the  great  prob- 
lem. It  is  Liberty  by  the  benevolence  of  Government 
and  not  by  constitutional  right. 


NOTE 

Since  these  pages  have  been  put  into  type  Denmark,  in  its 
revised  Constitution  of  June  5,  1915,  has  extended  the  parlia- 
mentary suffrage  to  women,  has  reduced  the  age  qualification 
for  voting  from  thirty  to  twenty-five,  and  has  abolished  the 
appointed  element  in  the  Senate,  making  all  of  the  members 
elected  by  the  voters. 


BOOK  III 

THE  EFFORT  OF  AMERICA 
CHAPTER  I 

THE  UNITED   STATES  OF  NORTH  AMERICA 

LET  us  now  turn  to  the  Americas,  the  so-called  coun- 
tries of  political  promise,  and  see  what  advance  they  may 
have  made  in  the  solution  of  our  problem.  Geograph- 
ically the  Americas  are  divided  into  North,  Central,  and 
South  America  and  the  West  Indian  Archipelago;  and 
within  the  same  there  exist  twenty-one  sovereign  com- 
munities— states;  in  South  America  ten,  viz.:  Argentina, 
Bolivia,  Brazil,  Chili,  Colombia,  Ecuador,  Paraguay,  Peru, 
Uruguay,  and  Venezuela;  in  Central  America  six,  viz.: 
Costa  Rica,  Guatemala,  Honduras,  Nicaragua,  Panama, 
and  Salvador;  in  the  West  Indian  Archipelago  three,  viz.: 
Cuba,  Santo  Domingo,  and  Hayti;  and  in  North  America, 
two,  viz. :  Mexico  and  the  United  States. 

Of  all  of  these  the  United  States  of  North  America  has 
taken  the  lead  in  constitutional  development  and  has  been 
for  all  the  rest  in  greater  or  less  degree  the  model.  We 
will,  therefore,  turn  our  attention  first  to  the  great  North 
American  Union  and  also  treat  of  it  lastly  and  in  conclu- 
sion, since  the  solution  which  it  had  given  to  the  problem 
of  the  reconciliation  between  Government  and  Liberty 
has,  in  the  last  three  years,  been  called  in  question  again 
and  a  modification  of  it  seems  to  be  in  danger,  at  least, 
of  realization. 

288 


THE  EFFORT  OF  AMERICA  289 

As  has  been  frequently  indicated  in  the  course  of  this 
inquiry,  the  three  fundamental  factors  in  the  solution  of 
our  problem  are:  first,  the  organization  of  the  sovereign 
power,  the  state,  back  of  and  independent  of  the  Gov- 
ernment; second,  the  delineation  by  the  sovereign  of  the 
realm  of  Individual  Immunity  against  governmental  power; 
and  third,  the  construction  by  the  sovereign  of  the  organs 
and  the  procedure  for  protecting  this  realm  of  Individual 
Immunity  against  the  encroachments  of  Government. 

There  is  nothing  more  difficult  in  political  history  and 
political  science  than  to  trace  the  original  organization  of 
a  sovereign  power,  and  state  correctly  its  continuing  or- 
ganization and  operation.  Happily,  this  is  a  much  easier 
task  in  the  history  of  the  American  states  than  in  that 
of  the  European  or  the  Asiatic.  The  entire  process  stands 
out  with  much  greater  clearness  in  the  full  light  of  modern 
times. 

The  original  thirteen  Colonies,  the  fusion  of  whose  in- 
habitants formed  the  American  nation,  were  all  severally 
subject  to  the  sovereignty  of  the  British  Crown.  This 
position  of  the  British  Crown  in  relation  to  them  must 
be  carefully  distinguished  from  the  position  of  the  Crown 
as  participant,  through  its  own  appointed  agents,  in  the 
Government  of  most  of  them.  As  sovereign  power  the 
Crown  framed  and  conferred  the  Charters  and  Patents 
through  which  it  granted  the  territory,  created  the  Gov- 
ernment, vested  the  Government  with  its  powers,  defined 
the  Liberties  of  the  Individual,  and  reserved  the  final  pro- 
tection of  the  same  to  the  Royal  Courts  or  the  Privy 
Council  in  England.  As  sovereign  power  the  Crown,  fur- 
thermore, amended  and  revised  the  Charters  and  Patents, 
and  sometimes  vacated  them  entirely.  The  grantees  re- 
garded the  Charters  and  Patents  as  contracts  between 


29o  GOVERNMENT  AND  LIBERTY 

themselves  and  the  Crown  and  resisted,  in  increasing  mea- 
sure, the  claim  on  the  part  of  the  Crown  of  the  right  to 
modify  or  withdraw  them,  until  at  last  the  attempt  by  the 
Crown  to  change  the  Massachusetts  instrument  precipi- 
tated the  Revolution.  By  precipitated  I  do  not  mean 
caused  the  Revolution,  but  only  occasioned  it.  The 
cause  of  the  Revolution  was,  as  the  great  French  statesmen 
Turgot  and  Choiseul  said  years  before  it  came,  the  forma- 
tion of  the  American  nation.  This  development  had  been 
consciously  progressing  for  ten  years  before  1775.  Ac- 
cording to  the  principles  of  British  public  law  the  Colonies 
of  North  America  were  connected  with  each  other  only 
through  the  Crown,  the  union  was  what  is  known  in  po- 
litical science  as  a  personal  union.  But  here  were  a  num- 
ber of  communities  scattered  for  a  thousand  miles  along 
the  Atlantic,  on  the  east  side  of  the  Alleghany  mountain 
range,  consisting  mainly  of  people  of  English  descent, 
speaking  the  English  language,  professing  the  religion  of 
Protestant  Christianity,  living  under  the  customs  and 
regulations  of  the  English  common  law,  and  separated 
from  the  motherland  by  three  thousand  miles  of  ocean, 
which,  with  the  then  inadequate  means  of  navigation, 
made  intercourse  difficult,  slow,  and  very  irregular.  In 
the  hundred  years  between  1665  and  1765  the  settlements, 
separated  originally  from  each  other  by  broad  belts  of 
forest,  in  which  the  savage  and  wild  beast  roamed, 
increased  in  population  and  extended  the  settled  areas 
until  they  more  nearly  touched  each  other,  which  natur- 
ally produced  much  more  active  and  regular  trade  and 
intercourse  between  the  inhabitants  of  the  several  Col- 
onies. This  more  active  trade  and  intercourse  produced 
in  turn  a  more  and  more  constant  and  regular  exchange 
of  opinion  regarding  all  public  questions,  especially  re- 


THE  EFFORT  OF  AMERICA  291 

garding  the  relation  of  the  several  Colonies  to  the  mother- 
land, and  when  in  1765  the  British  Parliament  made  a  dis- 
tinct effort  to  assert  its  sovereignty  over  the  Colonies, 
putting  itself  in  the  place  which  the  Crown  had  in  the 
public  opinion  as  well  as  in  the  public  law  to  that  time 
occupied,  the  opportunity  offered  itself  for  a  well-defined 
general  policy  of  resistance.  From  that  moment  forward 
the  formation  of  a  party  of  resistance,  not  simply  to  par- 
ticular acts  of  governmental  arbitrariness,  but  to  the  sov- 
ereignty of  the  British  Parliament,  began  to  manifest 
itself.  What  were  called  Committees  of  Correspondence 
appeared  now  in  every  Colony.  These  Committees  were 
the  nuclei  of  the  Revolutionary  party  in  each  Colony. 
They  were  the  local  organization  of  the  National  patriotic 
party.  By  intercourse  through  these  Committees  a  con- 
sensus of  opinion  was  approximately  reached,  which  fur- 
nished a  basis  for  united  popular  action. 

The  Colonial  Governments  had  nothing  to  do  with  this 
movement.  They  were  British  institutions,  and  in  their 
eyes  this  movement  for  the  overthrow  of  the  sovereignty 
of  the  motherland  was  nothing  short  of  treason.  It  was 
an  extra-legal  popular  movement.  It  was  a  new  nation 
forming  itself  in  the  womb  of  history  and  preparing  to 
emerge  into  independent  life.  By  1774  the  time  had  come 
for  this  new  National  party  to  give  itself  a  National  or- 
ganization. The  Port  Bill  and  Regulating  Act  of  April, 
1774,  enacted  by  the  British  Parliament  against  the  Col- 
ony of  Massachusetts  Bay,  precipitated  this  result.  In 
the  course  of  the  following  month,  the  Committee  of  Cor- 
respondence of  the  Sons  of  Liberty,  the  name  of  the  Na- 
tional patriotic  party  in  the  City  and  Colony  of  New 
York,  sent  out  a  call  to  all  associations  of  a  similar  nature 
throughout  the  thirteen  Colonies  for  a  general  Congress  or 


292  GOVERNMENT  AND  LIBERTY 

rather  Convention.  The  term  Congress  has  been  too  much 
connected  with  Government  to  designate  correctly  the 
body  which  was  thus  brought  together.  This  call  was 
acted  upon  by  the  inhabitants  in  the  different  localities, 
irregularly  of  course,  and  as  the  custom  of  each  prompted, 
and  on  the  5th  of  the  following  September  some  fifty  men 
met  in  the  Carpenters'  Hall,  in  Philadelphia,  and  formed 
the  first  National  Convention  known  to  American  history. 
They  hardly  seemed  to  know  themselves  whom  or  what 
they  represented,  what  were  their  powers  and  functions, 
or  what  was  their  purpose.  Patrick  Henry  seems  to  have 
been  the  one,  if  not  the  only  one,  who  had  clear  concep- 
tions on  these  fundamental  points,  and  he  subsequently 
became  confused  and  even  backsliding  in  regard  to  them. 
In  the  inspiration  of  the  moment,  he  came  very  near  to 
telling  the  body  what  it  was.  He  exclaimed:  " British  op- 
pression has  effaced  the  boundaries  of  the  several  Col- 
onies; the  distinctions  between  Virginians,  Pennsylva- 
nians,  New  Yorkers,  and  New  Englanders  are  no  more.  I 
am  not  a  Virginian.  I  am  an  American." 

The  name  given  to  this  body  in  American  history  is 
the  First  Continental  Congress,  but  on  the  day  of  assem- 
bly and  organization  it  was  nothing  more  nor  other  than 
the  National  Convention  of  the  patriotic  party  of  America. 
What  it  would  become  depended  upon  what  it  should 
later  do.  It  presented  its  theory  of  the  British  Colonial 
system  of  North  America.  It  was  that  the  Crown  was 
the  sovereign  in  the  system  and  that  the  Crown  governed 
through  separate  bodies  in  the  several  Colonies,  the  chief 
element  of  which  was  the  Legislature  chosen,  as  to  its 
Lower  House  at  least,  by  the  voters  and  vested  with  the 
sole  power  of  making  grants  to  the  Crown  and  levying 
taxes  and  also  with  the  power  of  initiating  and  vetoing  all 


THE  EFFORT  OF  AMERICA  293 

projects  of  law.  If  the  British  Parliament  could  be  re- 
garded as  having  any  relation  to  the  Colonies  at  all  it 
was  only  in  international,  purely  external  matters,  not 
connected  with  taxation  or  the  imposition  of  any  burdens 
whatsoever. 

The  First  Continental  Congress  demanded  the  accep- 
tance of  this  view  by  the  King  and  the  Parliament  and 
recommended  the  assembly  of  a  second  Congress  in  May 
of  the  following  year  unless  the  grievances  should  be,  be- 
fore then,  fully  met  and  removed.  This  did  not  happen, 
and,  in  May  of  1775,  there  assembled  again  in  Philadel- 
phia a  body  of  men  of  about  the  same  number  as  before, 
chosen  chiefly  by  conventions  of  the  people  within  the 
several  Colonies.  When  this  body  met  it  was  again  only 
the  National  Convention  of  a  party,  the  patriotic  party, 
the  party  which  we  may,  a  little  later,  term  the  National 
Revolutionary  party.  Whether  it  would  become  anything 
more  or  other  depended  also  on  what  it  should  do. 

Just  before  it  met,  however,  the  conflict  of  arms  had 
begun,  in  an  irregular  manner,  indeed,  but  it  had  certainly 
produced  a  change  of  conditions.  This  second  Conven- 
tion, known  as  the  Second  Continental  Congress,  imme- 
diately assumed  constituent  powers,  that  is,  the  powers 
of  sovereignty.  It  created  an  Army,  a  Navy,  a  Treasury, 
and  a  Post-Office  and  elected  a  Commander-in-Chief  of 
the  forces,  that  is,  a  military  Executive,  and  itself  as- 
sumed the  functions  of  an  ordinary  Legislature.  Further, 
upon  proposition  that  it  create  a  uniform  system  of  local 
Government  to  take  the  place  of  the  British  Colonial 
Governments,  it  authorized,  under  the  form  of  suggestion, 
the  inhabitants  of  the  several  Colonial  Territories  to  create 
local  governmental  institutions  for  themselves  on  the  basis 
of  the  broadest  possible  suffrage.  Finally,  after  all  this 


294  GOVERNMENT  AND  LIBERTY 

constructive  constituent  work  had  been  done,  the  Con- 
gress declared,  in  the  name  and  by  the  authority  of  the 
good  people  of  the  Colonies,  the  United  Colonies  to  be 
free  and  independent.  National  unity  and  National  sov- 
ereignty preceded  thus  the  Declaration  of  Independence 
and  produced  it.  This  was  all  in  the  line  of  a  sound  and 
true  development,  and  had  the  Congress,  the  people,  and 
the  new  States  of  the  Union  gone  straight  forward  upon 
this  line,  the  great  problem  of  the  reconciliation  of  Govern- 
ment with  Liberty  would  have  been  well  set  upon  the  way 
of  solution.  But,  unhappily,  as  it  appears  to  the  student 
of  political  history,  this  ideal  start  was  checked  and  im- 
peded in  its  earliest  stages  of  progress,  and  fifteen  years 
of  experience  and  of  suffering  followed  before  these  imped- 
iments were  only  partially  removed,  and  even  to-day  they 
have  not  been  entirely  removed. 

The  steps  of  this  erroneous  course  of  things  can  now  be 
easily  traced.  The  Congress  appointed,  upon  the  same 
date,  the  Committee  upon  Independence  and  that  upon 
the  Constitution.  But  tearing  down  is  an  easier  and 
more  rapid  work  than  building  up,  and  the  latter  Com- 
mittee made  its  report  later  and  the  Congress,  engaged 
in  the  active  work  of  Government,  of  Government  too 
under  the  strain  and  stress  of  war,  did  not  take  up  the 
report  for  consideration  until  November  of  1777. 

During  the  period  between  July  of  1776  and  November 
of  1777,  the  most  capable  personages  of  the  Congress  with- 
drew from  it  to  take  part  in  the  State  Conventions  for 
forming  the  new  State  Constitutions  and  Governments  and 
then  to  take  the  posts  of  Governors,  Judges,  and  legisla- 
tors in  the  new  State  Governments.  The  prestige  of  the 
Congress  sank  with  its  capacity,  as  that  of  the  States 
rose,  and  the  jealousies  engendered  between  the  States 


THE  EFFORT  OF  AMERICA  295 

where  the  chief  burden  of  the  war  fell  and  those  exempt 
from  the  same,  in  greater  or  less  degree,  tended  to  breed 
a  sense  of  hostility  and  disunion.  When,  then,  the  Con- 
gress took  up  the  work  of  framing  the  first  Constitution 
of  the  new  Union,  it  had  neither  the  capacity  nor  the  dis- 
position to  combat  the  claims  of  the  States  to  exaggerated 
powers  in  Government,  even  to  sovereignty,  and  it  drafted 
an  instrument  termed  "Articles  of  Confederation,"  which 
proposed  the  creation  of  a  system,  the  fundamental  prin- 
ciple of  which  was  a  Confederation  of  sovereign  States, 
with  a  central  Government,  consisting  of  a  Congress  of 
delegates  chosen  by  the  Legislatures  of  the  several  States, 
exercising  functions  in  the  nature  of  suggestion  rather 
than  powers,  and  these  confined  to  a  narrow  list  of  speci- 
fied subjects,  without  any  sphere  of  Individual  Immunity 
against  governmental  power,  and  of  course  without  any 
means  of  defending  such  a  sphere  against  encroachment 
by  the  Congress  of  the  Confederation,  on  the  one  side,  or 
the  States  of  the  Confederation,  on  the  other. 

In  this  new  system,  the  first  written  instrument  for  the 
United  States  of  America,  there  was  thus  not  even  an 
attempt  to  solve  the  great  problem  of  the  relation  of  Gov- 
ernment to  Liberty.  A  maimed  and  puerile  Government 
and  the  utter  ignoring  of  Liberty  were  its  chief  features. 
It  was  adopted  by  the  Legislatures  of  all  the  States  and 
went  into  operation  in  the  year  1781. 

In  six  years  of  contemptible  existence,  it  demonstrated 
that  it  had  not  only  not  advanced  the  great  problem  of 
political  civilization  a  single  hair's  breadth  toward  solution, 
but  that  under  it  local  Government  was  fast  becoming 
either  despotic,  in  one  case,  or  anarchic,  in  another. 

A  few  of  the  greater  minds  saw  the  error  of  the  whole 
situation,  but  were  greatly  puzzled  how  to  escape  from 


296  GOVERNMENT  AND  LIBERTY 

it,  because  any  change  in  the  Articles  of  Confederation 
required  the  approval  of  the  Legislature  of  every  State 
of  the  Confederation.  They  tried  first  one  way  and  then 
another  and  finally  succeeded  in  getting  a  resolution  through 
the  Congress  of  the  Confederation  on  the  2ist  of  Febru- 
ary, 1787,  which  read:  "That  in  the  opinion  of  Congress 
it  is  expedient  that,  on  the  second  Monday  in  May  next, 
a  convention  of  delegates,  who  shall  have  been  appointed 
by  the  several  States,  be  held  at  Philadelphia  for  the  sole 
and  express  purpose  of  revising  the  Articles  of  Confedera- 
tion and  reporting  to  Congress  and  the  several  Legisla- 
tures such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  by  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies 
of  Government  and  the  preservation  of  the  Union."  The 
language  here  used  differs  a  little  from  that  employed  in 
the  paragraph  of  amendment  of  the  Articles  of  Confedera- 
tion. The  existing  law  of  amendment  required  the  ap- 
proval of  the  Legislature  of  each  and  every  State  to  any 
change  in  the  Articles  of  Confederation.  This  resolution 
speaks  of  approval  by  the  States,  without  referring  to  the 
bodies  within  the  States  which  should  act  or  declaring 
specifically  that  all  the  States  must  approve  to  affect  any 
change.  Also  the  Congressional  resolution  speaks  of  the 
"Federal  Constitution"  instead  of  using  the  strictly  legal 
designation  of  "Articles  of  Confederation."  We  do  not 
know  why  these  discrepancies  in  language  were  brought 
in  or  allowed  to  slip  in.  The  resolution  certainly  does 
appear  to  give  more  latitude  than  the  Articles.  However 
that  may  be,  the  provision  of  the  Articles  was  the  law 
and  any  departure  from  it  which  the  resolution  might  be 
conceived  to  allow  was  absolutely  null  and  void. 
In  answer  to  this  resolution  the  Legislatures  of  all 


THE  EFFORT  OF  AMERICA  297 

the  States,  except  that  of  Rhode  Island,  elected  delegates, 
and  the  persons  chosen  met  in  May,  as  required  by  the 
resolution,  in  Philadelphia.  There  is  no  question  that 
they  were  the  natural  leaders,  the  best  political  minds  of 
the  country,  and  that  they,  if  anybody,  could  handle  the 
great  problem  which  confronted  them. 

Two  things  they  saw  quite  clearly  from  the  outset. 
The  first  was  that  what  they  wanted  was  no  amendment 
nor  revision  of  the  Articles  of  Confederation  but  a  new 
instrument  from  start  to  finish,  and  a  genuine  Constitu- 
tion at  that.  The  second  was  that  they  must  find  some 
other  way  of  putting  it  into  force  than  the  way  prescribed 
in  the  Articles  of  Confederation,  since  this  required  the 
approval  of  the  Legislature  of  every  State  and  the  atti- 
tude of  the  Legislature  of  Rhode  Island  to  the  Conven- 
tion proved  clearly  enough  that  this  Legislature  would 
assent  to  no  departures  from  these  Articles.  This  was  a 
profoundly  serious  thing.  The  method  of  changing  the 
organic  law  provided  in  these  Articles  was  the  law  of  the 
land.  The  employment  of  any  other  method  would  be 
unlawful.  It  would  be  revolution,  if  successful.  If  not 
successful,  it  would  be  attentat  approaching  treason.  The 
men  of  that  Convention  were  large-minded  enough  not  to 
be  deterred  by  these  considerations.  They  went  straight 
forward,  created  a  real  Constitution  of  Government  and 
Liberty  and  resolved  that  when  the  same  should  be  ap- 
proved by  Conventions  of  the  people  in  nine  of  the  States 
of  the  Confederation  it  should  be  regarded  as  established 
over  them  and  be  put  into  operation. 

Upon  receiving  notification  of  the  adoption  of  the  New 
Constitution  by  the  Conventions  of  nine  of  the  States, 
the  Congress  of  the  Confederation  immediately  framed  a 
resolution  for  putting  the  new  system  into  operation. 


298  GOVERNMENT  AND  LIBERTY 

During  the  period  between  the  introduction  and  the  pas- 
sage of  the  resolution,  Conventions  of  the  people  in  two 
more  States  adopted  the  Constitution,  and  it  was  put 
into  operation  in  April  of  1789,  when  Conventions  of  the 
people  in  only  eleven  States  had  ratified  it.  In  fact  the 
people  of  Rhode  Island  had  in  their  town  meetings  re- 
jected it. 

They  undoubtedly  supposed  and  had  certainly  good 
reason  to  suppose  that  their  act  had  defeated  the  new 
Constitution  altogether  and  had  preserved  the  Union  under 
the  Articles  of  Confederation,  but  when  the  Congress  of 
the  Confederation  and  the  supporters  of  the  new  Consti- 
tution went  resolutely  forward  and  put  the  new  system 
into  operation,  thereby  destroying  the  old  system  of  the 
Confederation,  without  any  regard  to  the  method  for 
doing  so  contained  in  the  Articles  of  Confederation,  the 
only  legal  method,  and  thus  left  North  Carolina  and 
Rhode  Island  isolated  and  in  danger  of  being  absorbed 
by  conquest,  Conventions  in  both  of  these  States  quickly 
ratified,  and  by  the  middle  of  the  year  1790  the  Union 
under  the  new  Constitution  was  complete. 

During  the  period  of  ratification  several  of  the  Con- 
ventions had  suggested  an  extension  of  the  realm  of  In- 
dividual Immunity  in  the  Constitution,  which  was  imme- 
diately done  in  the  manner  prescribed  in  the  new  Con- 
stitution itself  for  its  own  amendment.  With  this  the 
new  instrument  received  its  complete  original  form.  There 
is  thus  no  possible  way  of  explaining  the  genesis  of  the 
new  Constitution  from  the  point  of  view  of  existing  law. 
It  was  a  revolutionary  procedure  pure  and  simple.  It 
was  an  original  sovereign  act  of  the  people  of  the  nation 
organized  in  National  and  State  Conventions. 

Let  us  now  examine  the  fundamental  principles  of  the 


THE  EFFORT  OF  AMERICA  299 

new  Constitution  in  connection  with  the  method  of  its 
creation  and  see  how  near  it  came  to  the  solution  of  our 
problem.  As  I  have  said,  again  and  again,  the  first  ele- 
ment in  that  solution  is  the  existence  of  a  sovereign  power 
back  both  of  Government  and  Liberty,  which  shall  create, 
define,  and  correlate  both  and  protect  each  against  the 
encroachments  of  the  other.  In  the  original  formation  of 
the  Constitution  of  1787  this  requirement  was,  as  we  have 
seen,  fulfilled.  It  remains  now  to  be  seen  whether  the 
continuing  organization  of  such  a  sovereign  power  is  pro- 
vided in  the  Constitution  itself  for  future  changes.  Ar- 
ticle V  contains  the  provision  which  we  are  seeking.  It 
authorizes  four  ways  for  amending  or  revising  the  or- 
ganic law.  The  first  is  through  initiation  by  Congress 
ratified  by  the  Legislatures  of  three-fourths  of  the  States 
of  the  Union;  the  second  is  through  initiation  by  Con- 
gress ratified  by  Conventions  of  the  people  in  three-fourths 
of  the  States;  the  third  is  through  initiation  by  a  Con- 
vention of  the  United  States  ratified  by  the  Legislatures 
of  three-fourths  of  the  States;  and  the  fourth  is  through 
initiation  by  a  Convention  of  the  United  States  ratified 
by  Conventions  of  the  people  in  three-fourths  of  the 
States  of  the  Union.  The  last  method  is  from  the  point 
of  view  of  Political  Science  the  ideal  one.  It  organizes 
the  sovereignty  back  of  both  Government  and  Liberty 
and  makes  it  commanding  over  both  in  all  respects  but 
two.  These  two  flaws  in  the  principle  are  the  necessity 
for  the  Legislatures  of  two-thirds  of  the  States  of  the 
Union  to  join  in  the  call  for  the  national  Convention  and 
the  exception  of  the  provision  which  established  the  equal 
representation  of  the  States  in  the  Upper  House  of  the 
national  Legislature  from  the  operation  of  the  sovereign 
power  as  thus  organized.  No  sovereign  power  is  perfectly 


3oo  GOVERNMENT  AND  LIBERTY 

organized  until  its  action  is  freed  from  all  obstacles  by 
Government  and  until  it  is  supreme  over  every  subject. 
In  the  continuing  organization  of  the  sovereign  power, 
the  most  fundamental  principle  of  any  Constitution,  the 
Constitution  of  the  United  States,  while  far  in  advance 
of  most  of  the  organic  instruments  of  the  states  of  the 
world,  is  certainly  surpassed  by  the  provisions  of  the 
Swiss  Constitution.  Moreover,  it  must  be  remembered 
that  in  practise  this  more  ideal  method  of  organization 
has,  since  the  original  adoption  of  the  Constitution,  never 
been  employed,  but  only  the  method  first  described,  viz.: 
initiation  by  the  national  Legislature,  the  Congress,  and 
ratification  by  the  Legislatures  of  two-thirds  of  the  States 
of  the  Union.  While  this  method  has  the  advantage  of 
practical  convenience,  it  hinders  the  solution  of  the  great 
problem  of  the  reconciliation  of  Government  and  Liberty 
by  leaving  too  much  to  Government,  since  through  it 
Government  as  a  whole  can  increase  its  own  powers.  It 
can,  therefore,  make  itself  absolute  and  extinguish  Liberty 
entirely. 

The  second  factor,  as  we  have  so  often  seen,  in  the  solu- 
tion of  our  problem  is  the  realm  of  Individual  Immunity 
against  governmental  power.  The  original  Constitution, 
considering  the  first  ten  amendments  as  contemporaneous 
with  the  same  and  therefore  as  a  part  of  the  same,  con- 
tained such  a  realm.  In  outline  it  provided  that  Gov- 
ernment should  not  arrest  the  person  except  by  special 
warrant,  where  warrant  was  necessary;  that  Government 
should  not  detain  except  by  judicial  order,  and  should 
not  demand  excessive  bail;  that  it  should  not  prosecute 
for  infamous  crime  except  upon  indictment  by  grand 
jury;  that  it  should  pass  no  sentence  by  a  legislative  act 
and  condemn  under  no  retroactive  law;  that  it  should 


THE  EFFORT  OF  AMERICA  301 

subject  no  person  twice  to  jeopardy  of  life  or  limb,  nor 
compel  any  person  in  a  criminal  case  to  give  testimony 
against  himself;  that  it  should  try  no  person  accused  of 
crime  except  by  an  impartial  jury,  publicly,  after  infor- 
mation furnished  the  accused  of  the  nature  and  cause  of 
the  accusation,  with  right  to  be  confronted  by  witnesses 
against  him  and  to  have  compulsory  process  for  securing 
witnesses  in  his  favor,  nor  deprive  any  person  of  his  life 
or  liberty  without  due  process  of  law;  that  Government 
should  deprive  no  person  of  his  property  without  due 
process  of  law,  should  exact  no  direct  tax  from  him  ex- 
cept under  the  limitation  of  apportionment  among  the 
States  of  the  Union  according  to  population,  and  no  duty, 
import  or  excise,  except  under  the  limitation  of  uniformity 
throughout  the  United  States,  and  should  not  take  his 
property  except  for  a  public  purpose  and  except  under 
the  limitations  both  of  just  compensation  and  of  due  proc- 
ess of  law  in  making  the  condemnation  and  ascertaining 
the  amount  of  the  compensation;  that  Government  should 
not  deny  to  any  person  the  freedom  of  religion  nor  compel 
him  to  adhere  to,  or  contribute  to  the  support  of,  any 
religion;  that  Government  should  not  deny  to  any  person 
the  freedom  of  expressing  his  thoughts  either  verbally  or 
through  publication;  and  that  Government  should  not 
deny  to  any  person  or  persons  the  right  to  assemble  peace- 
ably and  petition  Government  for  redress  of  grievances; 
finally,  that  Government  should  not  define  the  crime  of 
treason,  except  as  defined  in  the  Constitution,  viz.:  as 
the  levying  of  war  against  the  United  States  or  adhering 
to  their  enemies,  giving  them  aid  and  comfort,  nor  con- 
vict any  one  for  treason  except  on  the  testimony  of  two 
witnesses  to  the  same  overt  act  or  on  confession  in  open 
court,  nor  punish  treason  by  corruption  of  blood  or  for- 


302  GOVERNMENT  AND  LIBERTY 

feiture  of  estate  except  during  the  life  of  the  convicted 
person. 

This  is  a  fairly  complete  domain  of  Individual  Immu- 
nity against  governmental  power.  The  original  fault  with 
it  was  that,  with  the  exception  of  the  Immunity  against 
the  power  of  Government  in  the  definition,  trial,  and  pun- 
ishment of  treason,  and  of  certain  limitations  upon  the 
powers  of  the  States  in  the  levy  of  duties  on  exports,  im- 
ports, and  tonnage  and  in  the  enactment  of  retroactive 
laws,  it  held  only  against  the  central  Government.  The 
States  of  the  Union  might  still  encroach  upon  it. 

For  seventy  years  nothing  was  done  to  cure  this  fault, 
although  it  was  becoming  more  and  more  manifest  that 
in  the  States  legalizing  slaveholding  the  tyranny  of  Gov- 
ernment was  increasing  and  was  even  threatening  the  Liber- 
ties of  the  Individual  in  the  States  in  which  slavery  was  un- 
lawful. The  crisis  in  this  development  was  reached  in  1861 
and  the  vindication  of  Liberty  was,  finally,  constitution- 
ally authenticated  by  the  thirteenth  and  fourteenth  amend- 
ments, which  abolished  personal  slavery  everywhere  within 
the  Union,  made  citizenship  national,  declared  the  equal 
protection  of  the  laws  against  the  powers  of  the  States,  and 
prohibited  the  States  from  depriving  any  person  of  life, 
liberty,  or  property  without  due  process  of  law. 

With  this  a  national  domain  of  Individual  Immunity 
against  all  governmental  power,  central  or  local,  of  prac- 
tically sufficient  proportions,  was  constructed  within  the 
Constitution,  and  for  nearly  fifty  years  the  country  pro- 
gressed under  it,  and  men  began  to  fancy  that  the  solu- 
tion of  the  great  problem  had  been  finally  attained,  when 
suddenly,  almost  like  a  bolt  out  of  blue  sky,  came  the  up- 
heaval of  1912,  which  has  changed  the  face  of  things  al- 
most beyond  recognition.  I  will  reserve  the  discussion 


THE  EFFORT  OF  AMERICA  303 

of  this  change,  however,  to  the  concluding  pages  of  this 
work,  after  I  shall  have  treated  of  the  means  created  by 
the  Constitution  of  the  United  States  for  defending  this 
sphere  of  absolute  Immunity  against  all  governmental 
power  and  shall  have  compared  the  provisions  of  the  Con- 
stitutions of  the  other  American  states  with  those  of  the 
Constitution  of  the  United  States. 

These  means  are  of  two  general  sorts.  Those  of  the 
first  sort  are  to  be  found  in  the  general  structure  of  the 
Government  itself  and  those  of  the  second  in  the  relation 
of  the  independent  Judicial  power  to  the  political  depart- 
ments of  the  Government. 

The  first  feature  in  the  governmental  system  of  the 
United  States  to  which  I  will  call  attention  as  bearing 
upon  the  problem  I  am  handling  is  that  it  is  Federal  Gov- 
ernment. It  is  usual  to  speak  of  the  Government  at 
Washington,  the  central  Government,  as  the  Federal 
Government.  I  do  not  use  the  term  in  that  sense.  By 
Federal  Government  I  intend  a  system  of  Government  in- 
cluding two  or  more  sets  of  governmental  organs  resting 
upon  a  common  sovereignty,  but  independent  in  so  great 
a  measure  of  each  other  that  neither  can  be  regarded  as 
the  agent  of  the  other,  a  system  in  which  the  common 
sovereign  distributes  the  powers  of  Government  between 
these  different  sets  of  governmental  organs  on  the  principle 
that  the  powers  in  regard  to  national  subjects  shall  go  to 
the  Central  Government  and  those  in  regard  to  local  sub- 
jects to  the  local  Governments,  the  States  of  the  Union. 

In  this  distribution  of  governmental  powers  between 
two  or  more  sets  of  governmental  organs  there  is  a  cer- 
tain security  that  the  realm  of  Individual  Immunity 
against  governmental  power  will  not  be  encroached  upon. 
It  is  seldom  a  complete  reliance  and  not  always  a  partial 


304  GOVERNMENT  AND  LIBERTY 

one.  But  it  is  easy  to  see  that  absolutism  in  Government 
can  hardly  perfect  itself  where  the  whole  governmental 
power  is  not  held  by  any  one  set  of  organs.  Generally 
speaking,  it  is  in  some  small  degree  at  least  a  defense. 
This  is  especially  true  when  the  powers  of  the  Central 
Government  are  expressly  enumerated  and  the  residuary 
powers  are  reserved  to  the  local  organs,  the  States  of  the 
Union,  and  when  the  ultimate  point  of  residuary  Govern- 
ment is  the  local  Legislature.  It  is  true  that  under  cer- 
tain conditions  the  local  Legislature  may  be  more  ty- 
rannic than  the  general.  But  it  is  not  generally  so.  It 
is  generally  more  fully  controlled  by  considerations  of  In- 
dividual Liberty  than  the  central  Legislature. 

The  second  feature  of  the  governmental  system  of  the 
United  States,  from  the  point  of  view  of  our  problem,  is 
that  it  is  elective  Government.  Before  the  Revolutions 
of  1848  this  would  surely  have  been  considered  a  defense 
of  Individual  Immunity  against  governmental  power. 
But  now  that  the  old  Monarchic  power  of  the  King  has 
generally  become  simply  the  executive  power  in  the  hands 
of  a  permanent  chief,  this  is  not  so  apparent.  In  fact  it 
is  often  the  case  that  an  elected  body  proceeds  with  less 
consideration  for  Individual  Liberty  than  a  King. 

The  third  feature  of  the  construction  of  the  Govern- 
ment which  must  be  considered  from  the  point  of  view 
of  our  problem  relates  to  the  distribution  of  the  powers 
of  Government  among  several  departments  according  to 
their  nature,  creating  what  is  known  as  the  check-and- 
balance  system  of  Government.  In  this  connection  I  will 
speak  only  of  the  distribution  of  powers  between  the 
Legislature  and  the  Executive  and  the  co-ordination  of 
the  Legislature  and  the  Executive  in  the  exercise  of  them. 
The  Constitution  confers  upon  the  Legislature,  the  Con- 


THE  EFFORT  OF  AMERICA  305 

gress,  the  making  of  laws  and  ordinances,  the  levy  of 
taxes,  and  the  making  of  appropriations,  and  upon  the 
Executive  the  Commandership  of  the  Army  and  the 
Navy  and  the  control  of  the  diplomatic  and  civil  service 
to  the  end  that  he  may  defend  the  country  against  inva- 
sion, suppress  insurrection,  and  execute  the  laws.  This 
is,  broadly  speaking,  the  line  of  demarcation  between 
legislative  and  executive  functions,  and  the  preservation 
of  this  line  has  a  tendency  to  retard  the  development  of 
Government  in  its  almost  inevitable  tendency  to  absolu- 
tism. To  effect  this,  however,  this  line  of  demarcation 
must  be  real,  not  fictitious,  as  is  the  case  in  what  is  termed 
Parliamentary  Government,  as  is  the  case,  for  example, 
in  the  relation  of  the  British  Parliament  to  the  King. 
And  that  this  may  be  so  the  Executive  must  be  both  re- 
sponsible to  the  Legislature  in  a  certain  way  and  inde- 
pendent of  it  in  another.  If  he  should  undertake  to  as- 
sume legislative  functions,  that  is,  if  he  should  attempt 
a  coup  d'etat,  the  Legislature  must  have  the  power  and 
the  process  of  removing  him,  so  guarded,  however,  as 
not  to  be  possible  of  employment  simply  to  get  rid  of 
legitimate  differences  of  opinion.  And  if  the  Legislature 
should  undertake  in  its  enactments  to  encroach  upon  and 
assume  executive  functions,  the  Executive  must  be  fur- 
nished with  the  power  and  the  means  of  preventing  the 
same,  not  to  such  a  degree,  however,  as  to  enable  him  to 
absolutely  control  legitimate  legislative  action.  In  the  pro- 
visions of  the  Constitution  for  the  impeachment  of  the 
President  by  the  Lower  House  of  Congress  and  his  trial 
and  condemnation  by  the  Upper,  the  Senate,  but  only 
by  an  extraordinary  majority,  and,  on  the  other  hand, 
for  the  veto  by  the  President  of  all  ordinary  acts  of  the 
legislative  branch,  but  which  can  be  overcome  by  an  ex- 


3o6  GOVERNMENT  AND  LIBERTY 

traordinary  majority  in  both  Houses,  these  relations  are 
so  arranged  as  to  have  maintained  the  Legislature  and  the 
Executive  independent  of,  and  yet  co-ordinated  with,  each 
other.  This  is  certainly  more  favorable  to  the  preserva- 
tion of  limited  Government  than  the  autocracy  of  the 
President,  on  the  one  hand,  or  control  of  the  administra- 
tion by  the  Legislature,  on  the  other. 

But  the  chief  and  most  effective  means  provided  in  the 
Constitution  for  the  protection  of  the  Immunity  of  the  In- 
dividual against  governmental  power  consists  in  the  con- 
stitutional position  and  power  of  the  Judiciary,  both  State 
and  National.  The  clauses  of  the  organic  law  relating 
to  this  subject  read  as  follows:  "The  Judicial  power  of 
the  United  States  shall  be  vested  in  one  Supreme  Court 
and  in  such  inferior  Courts  as  the  Congress  may,  from 
time  to  time,  ordain  and  establish.  The  Judges,  both  of 
the  Supreme  and  inferior  Courts,  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be  di- 
minished during  their  continuance  in  office.  The  Judicial 
power  shall  extend  to  all  cases,  in  law  and  equity,  arising 
under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their 
authority.  This  Constitution  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof;  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the 
land;  and  the  Judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding." 

A  close  reading  of  the  debates  of  the  Convention  and 
of  the  essays  of  the  Federalist  will  reveal  the  purposes  in 
detail  of  these  provisions.  They  were  to  vest  the  whole 


THE  EFFORT  OF  AMERICA  307 

Judiciary  of  the  country,  both  State  and  National,  with 
the  power  to  maintain  the  supremacy  in  the  order,  first, 
of  the  Constitution  of  the  United  States,  then  of  the  Laws 
and  Treaties  of  the  United  States  made  in  pursuance  of 
the  Constitution  of  the  United  States,  then  of  the  Con- 
stitutions of  the  States  made  in  pursuance  of  the  Consti- 
tution, Laws,  and  Treaties  of  the  United  States,  and  finally, 
of  the  laws  of  the  States  made  in  pursuance  of  their  Con- 
stitutions and  the  Constitution,  Laws,  and  Treaties  of 
the  United  States.  To  effect  these  things  the  Courts 
of  the  United  States  were  vested  with  the  power  to  de- 
clare the  Acts  of  Congress,  the  Treaties  of  the  United 
States,  the  Constitutions  of  the  States  of  the  Union,  the 
acts  of  the  State  Legislatures  and  all  executive  acts  and 
orders  null  and  void  whenever,  in  the  opinion  of  the  Court, 
they  came  into  conflict  with  the  provisions  of  the  Consti- 
tution of  the  United  States.  They  were  also  vested  with 
the  power  of  declaring  the  provisions  of  the  Constitutions 
and  the  legislative  or  executive  acts  and  orders  of  the  States 
of  the  Union  null  and  void  whensoever  they,  in  the  opinion 
of  the  Court,  came  into  conflict  with  a  Law  of  Congress  or 
a  Treaty  of  the  United  States  made,  in  the  judgment  of 
the  Court,  in  pursuance  of  the  Constitution  of  the  United 
States.  On  the  other  hand,  the  Courts  of  the  States  of 
the  Union  were  vested  with  the  power  of  declaring  the 
provisions  of  the  Constitutions  of  the  States  and  the  acts 
of  the  State  Legislatures  and  Executives,  also  the  Acts 
of  Congress  and  the  Treaties  of  the  United  States,  null 
and  void  when,  in  the  opinion  of  the  Court,  they  contra- 
vened any  provision  of  the  Constitution  of  the  United 
States.  But  the  judgments  of  the  Courts  of  the  States 
declaring  an  Act  of  Congress  or  a  Treaty  of  the  United 
States  unconstitutional  or  the  provisions  of  a  State  Con- 


3o8  GOVERNMENT  AND  LIBERTY 

stitution  or  the  acts  of  a  State  Legislature  constitutional, 
as  tested  by  the  provisions  of  the  Constitution  of  the 
United  States,  were  made  subject  to  revision,  on  appeal 
or  writ  of  error,  by  the  Supreme  Court  of  the  United 
States. 

We  assume  that  the  prime  object  of  these  arrangements 
was  the  maintenance  of  the  proper  order  of  authority  in 
the  several  parts  of  the  whole  law  of  the  land,  but  it  is 
easy  to  see  how  they  protect  the  Immunities  of  the  In- 
dividual against  governmental  power  in  a  much  more 
effective  way  than  ever  before  conceived  and  realized, 
because  these  Immunities,  being  a  part  of  the  constitu- 
tional law  of  the  United  States,  take  precedence  of  every 
other  branch  of  the  law  and  must  be  so  held  and  so  upheld 
by  the  Courts,  both  State  and  National. 

It  would  be  hardly  correct  to  say  that  the  framers  of 
the  Constitution  of  1787  invented  this  method  and  means 
for  the  protection  of  Liberty  against  Government  and  the 
reconciliation  of  Government  with  Liberty,  for,  besides 
the  European  examples  which  I  have  cited  in  the  fore- 
going pages,  they  had  before  them  several  cases  in  the 
Supreme  Courts  of  the  States  of  the  Confederation  in  which 
these  Courts  nullified  statutes  of  the  State  Legislatures 
as  being  in  conflict  with  the  State  Constitutions,  and  at 
least  one  case  in  which  the  Supreme  Court  of  a  State 
nullified  an  act  of  the  State  Legislature  as  being  in  con- 
flict with  the  Articles  of  Confederation.  They  are,  how- 
ever, to  be  credited  with  having  given  form  to  the  raw 
material,  so  to  speak,  of  the  scheme  and  with  having 
supplemented,  developed,  and  perfected  it. 

If  we  confine  ourselves  to  an  account  of  the  construc- 
tion of  this  scheme  in  the  contemporaneous  reports,  we 
can  have  little  doubt  as  to  its  nature  and  purpose.  Every- 


THE  EFFORT  OF  AMERICA  309 

body  in  the  Convention  of  1787  realized  the  necessity  of 
securing  the  supremacy  of  the  Constitution  of  the  United 
States  over  all  other  parts  of  the  law  of  the  land,  and 
also  of  securing  the  supremacy  of  the  Acts  of  the  National 
Legislature  and  the  Treaties  of  the  United  States  over  the 
Constitutions  and  legislative  acts  of  the  States  of  the 
Union.  The  Randolph  Resolutions,  the  first  body  of  prop- 
ositions laid  before  the  Convention,  contained  a  provi- 
sion for  the  solution  of  this  question.  It  was  the  provision 
giving  the  Legislature  of  the  United  States  a  veto  on  the 
legislation  of  the  States.  This  was  soon  seen  to  be  de- 
fective in  several  respects.  First,  it  did  not  cover  the 
whole  ground.  It  offered  no  way  for  protecting  the  Con- 
stitution against  the  Acts  of  the  National  Legislature,  the 
Congress.  Then  it  was  offensive  to  all  having  a  strong 
States'-rights  feeling.  The  substitution  of  the  judicial  for 
the  legislative  method  in  dealing  with  this  fundamental 
problem  was  consciously  done  and  it  filled  up  all  the  gaps 
in  the  scheme.  It  was  one  thing  to  have  every  act  of 
a  State  Legislature  really  held  up  by  Congress,  and  quite 
another  to  have  it  possibly  questioned  in  a  lawsuit  be- 
fore learned  jurists  and  nullified  entirely  on  legal  and  ju- 
ristic grounds,  if  nullified  at  all,  and  it  was  soothing  to 
State  pride  that  the  Acts  of  the  Congress  of  the  United 
States  were  made  subject  to  the  same  principle  as  the 
acts  of  the  State  Legislatures  and  that  the  State  Courts 
were  vested  with  similar  powers  in  this  respect  to  those 
exercised  by  the  Courts  of  the  United  States. 

There  never  would  have  been  any  doubts  in  regard  to  the 
views  and  purposes  of  the  framers  of  the  Constitution  or 
in  regard  to  the  meaning  of  the  provisions  of  the  Consti- 
tution framed  by  them  to  solve  the  great  problem,  ex- 
cept for  the  States'-rights  turn  which  American  politics 


310  GOVERNMENT  AND  LIBERTY 

took  in  the  period  between  1794  and  1800.  Every  stu- 
dent of  American  history  knows  that  the  enactment  by 
Congress  of  the  Alien  and  Sedition  Laws  in  1798  and 
the  prosecutions  under  them  precipitated  a  struggle  cul- 
minating in  the  attempt  of  two  State  Legislatures,  those 
of  Virginia  and  Kentucky,  to  assert  for  the  Legislatures  of 
the  States  of  the  Union  the  power  of  determining  the 
constitutionality  of  Acts  of  Congress  and  of  nullifying 
the  same,  that  of  Kentucky  distinctly  and  that  of  Vir- 
ginia rather  confusedly.  They  appealed  to  the  Legisla- 
tures of  the  other  States  to  join  them  in  their  declara- 
tion, but  not  one  of  them  did  so.  On  the  other  hand, 
all  that  answered  at  all  condemned  the  position  taken  by 
the  two  Legislatures,  and  five  of  the  seven  answering  de- 
clared outright  that  it  was  the  function  of  the  Courts 
alone,  and  ultimately  of  the  Supreme  Court  of  the  United 
States,  to  declare  Acts  of  Congress  unconstitutional. 

Four  years  later  the  question  came  up  judicially  in  the 
case  of  Marbury  vs.  Madison,  and  Chief  Justice  Marshall, 
in  a  course  of  reasoning  which  is  impregnable,  held  that 
"the  basis  on  which  the  whole  American  fabric  has  been 
erected"  is  "the  original  right  of  the  people  to  establish, 
for  their  future  government,  such  principles  as,  in  their 
opinion,  shall  most  conduce  to  their  own  happiness.  The 
exercise  of  this  original  right  is  a  very  great  exertion, 
nor  can  it  be,  nor  ought  it  to  be,  frequently  repeated. 
The  principles,  therefore,  so  established  are  deemed  fun- 
damental, and,  as  the  authority  from  which  they  pro- 
ceed is  supreme  and  can  seldom  act,  they  are  designed 
to  be  permanent.  This  original  and  supreme  will  organ- 
izes the  Government,  and  assigns  to  different  depart- 
ments their  respective  powers.  It  may  either  stop  here 
or  establish  certain  limits  not  to  be  transcended  by  those 


THE  EFFORT  OF  AMERICA  311 

departments.  The  Government  of  the  United  States  is 
of  the  latter  description.  The  powers  of  the  Legislature 
are  defined  and  limited;  and,  that  these  limits  may  not 
be  mistaken  or  forgotten,  the  Constitution  is  written. 
The  Constitution  is  either  a  superior  permanent  law, 
unchangeable  by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts  and,  like  other  acts,  is  alterable 
when  the  Legislature  shall  please  to  alter  it.  If  the  former 
part  of  the  alternative  be  true,  then  a  legislative  act  con- 
trary to  the  Constitution  is  not  law;  if  the  latter  part 
be  true,  then  written  Constitutions  are  absurd  attempts, 
on  the  part  of  the  people,  to  limit  a  power  in  its  own 
nature  illimitable.  Certainly  all  those  who  have  framed 
written  Constitutions  contemplate  them  as  forming  the 
fundamental  and  permanent  law  of  the  Nation,  and  con- 
sequently the  theory  of  every  such  Government  must  be 
that  an  act  of  the  Legislature  repugnant  to  the  Consti- 
tution is  void.  This  theory  is  essentially  attached  to  a 
written  Constitution  and  is  consequently  to  be  considered 
by  this  Court  as  one  of  the  fundamental  principles  of  our 
society.  If  an  act  of  the  Legislature,  repugnant  to  the 
Constitution,  is  void,  does  it,  notwithstanding  its  inva- 
lidity, bind  the  Courts  and  oblige  them  to  give  it  effect? 
Or,  in  other  words,  though  it  be  not  law,  does  it  consti- 
tute a  rule  as  operative  as  if  it  was  a  law?  This  would 
seem,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.  It  is  emphatically  the  province  and  duty  of  the 
Judicial  Department  to  say  what  the  law  is.  Those  who 
apply  the  rule  to  particular  cases,  must  of  necessity  ex- 
pound and  interpret  that  rule.  If  two  laws  conflict  with 
each  other  the  Courts  must  decide  on  the  operation  of 
each.  ...  So  if  a  law  [an  act  of  the  Legislature]  be 
in  opposition  to  the  Constitution;  if  both  the  act  of  the 


3i2  GOVERNMENT  AND  LIBERTY 

Legislature  and  the  Constitution  apply  to  a  particular 
case,  so  that  the  Court  must  either  decide  that  case  con- 
formably to  the  act  of  the  Legislature,  disregarding  the 
Constitution,  or  conformably  to  the  Constitution,  dis- 
regarding the  act  of  the  Legislature,  the  Court  must 
determine  which  of  these  conflicting  rules  governs  the 
case.  This  is  of  the  very  essence  of  Judicial  duty.  If, 
then,  the  Courts  are  to  regard  the  Constitution,  and  the 
Constitution  is  superior  to  any  ordinary  act  of  the  Legis- 
lature, the  Constitution,  and  not  such  ordinary  act,  must 
govern  the  case  to  which  they  both  apply." 

This  entire  argument  is  easily  seen  to  be  based  upon 
the  nature  of  a  written  Constitution,  as  the  most  funda- 
mental part  of  the  law  of  the  land,  and  upon  the  unavoid- 
able necessity  for  the  Courts  to  apply  it  as  paramount 
law  in  all  cases  coming  before  them.  It  is  undoubtedly 
sound  reasoning.  But,  in  order  that  this  reasoning  should 
not  be  undervalued  as  theoretical  merely,  it  is  of  impor- 
tance that  it  should  be  sustained  by  some  constitutional 
provision.  Happily,  as  we  have  already  seen,  the  Con- 
stitution ordains  that  the  Judicial  power  of  the  United 
States  shall  extend  to  all  cases  in  law  and  equity  arising 
under  the  Constitution  as  well  as  under  Acts  of  Con- 
gress and  Treaties  and  that  the  Judges  of  the  State  Courts 
shall  be  bound  first  of  all  by  the  Constitution  of  the  United 
States  as  the  supreme  law  of  the  land,  anything  in  the 
State  Constitution  or  laws  to  the  contrary  notwithstand- 
ing. The  whole  of  the  great  Chief  Justice's  argument 
is  unassailable. 

But  in  order  that  the  position  thus  claimed  for  the 
Judicial  power  under  a  written  Constitution  should  be 
effective,  two  things  more  must  concur.  The  first  is  that 
the  Judiciary  shall  be  an  independent  department  estab- 


THE  EFFORT  OF  AMERICA  313 

lished  and  sustained  by  the  Constitution,  otherwise  the 
Legislature  could  avoid  its  restraining  power  by  simply 
abolishing  the  Courts  or  limiting  them  by  its  own  Stat- 
utes. This  is  exactly  why  the  Imperial  Courts  of  the 
German  Empire  cannot  assert  and  maintain  the  full  au- 
thority enjoyed  by  the  Supreme  Court  of  the  United  States. 
The  other  necessary  thing  to  make  the  judgments  of  the 
Courts  effective  in  decreeing  the  unconstitutionally  of 
legislative  acts  is  that  the  executive  power  must  enforce 
the  Judicial  decisions.  There  must  not  be  any  discretion 
upon  this  point  allowed  the  Executive.  The  Constitu- 
tion should  make  it  an  impeachable  offense  for  the  Execu- 
tive to  fail  to  exert  every  element  of  power  at  his  com- 
mand to  this  end. 

After  the  decision  in  Marbury  vs.  Madison  the  Nation 
appeared  to  recognize  its  principle  with  great  unanimity 
as  the  rule  of  the  Constitution  and  as  the  indispensable 
prerequisite  of  a  Constitutional  Republic.  Ten  years 
passed,  when  the  attitude  of  the  Commonwealths  of 
Massachusetts,  Connecticut,  and  Rhode  Island  regard- 
ing the  demands  made  upon  them  by  the  central  Gov- 
ernment in  prosecuting  the  War  of  1812-15,  seemed  to 
threaten  the  supremacy  of  the  Judiciary  in  constitutional 
interpretation,  by  the  claim  of  a  more  ultimate  power  for 
the  State  Legislatures  again.  Happily,  however,  this  went 
no  further  than  a  confused  pronunciamento. 

Fifteen  years  more  rolled  by  without  the  principle  of 
Marbury  vs.  Madison  being  further  questioned  or  threat- 
ened, when  the  contest  between  the  central  Government 
and  the  State  of  Georgia  involved,  finally,  the  Judicial 
power.  The  Constitution  of  the  United  States  vests 
Congress  with  the  exclusive  power  of  making  rules  and 
regulations  concerning  the  territory  belonging  to  the  United 


314  GOVERNMENT  AND  LIBERTY 

States  and  to  regulate  commerce  with  the  Indian  tribes. 
Unmindful  of  these  provisions  and  disregarding  the  prec- 
edents, the  Government  of  the  State  of  Georgia,  in  the 
case  of  Worcester  vs.  Georgia,  defied  the  judgment  of  the 
Supreme  Court  of  the  United  States  in  the  constitutional 
question  and  defied  it  successfully.  The  Legislature  of 
Georgia  passed  an  act  making  it  a  criminal  offense  for 
any  one  not  a  member  of  the  Indian  tribe  or  nation  of 
the  Cherokees  situated  within  the  limits  of  the  State 
of  Georgia  to  reside  among  them  after  March  31,  1831, 
without  a  license  from  the  Governor  of  the  State  and 
without  having  taken  an  oath  to  obey  and  support  the 
laws  of  the  State.  One  Worcester,  a  missionary  of  the 
Presbyterian  Church,  violated  this  enactment,  believing 
that  the  State  had  no  jurisdiction  over  any  person  on 
the  lands  occupied  by  the  Cherokees  within  the  limits 
of  the  State.  He  was  arrested  by  Georgia  officials,  tried 
by  a  Georgia  Court,  found  guilty,  condemned  to  im- 
prisonment, and  committed  to  the  penitentiary  of  the 
State.  His  friends  succeeded  in  procuring  a  writ  of  error 
from  a  Justice  of  the  Supreme  Court  of  the  United  States 
requiring  the  State  of  Georgia  to  show  cause  why  the 
prisoner  should  not  be  liberated.  This  writ  was  served 
in  due  form  on  the  Governor  and  Attorney- General  of 
the  State.  Neither  of  these  appeared  before  the  Court 
or  Justice,  or  made  any  answer  to  the  writ.  The  clerk 
of  the  Georgia  Court  simply  sent  to  the  United  States 
Court  a  record  of  the  case  in  the  Georgia  Court  duly 
authenticated.  The  Supreme  Court  of  the  United  States 
determined  that  this  was  sufficient  to  establish  the  juris- 
diction of  the  Court  and  took  up  the  case.  Chief  Justice 
Marshall  himself  delivered  the  opinion;  pronouncing  ;\the 
statute  of  the  Legislature  of  the  State  of  Georgia  assert- 


THE  EFFORT  OF  AMERICA  315 

ing  jurisdiction  over  persons  within  the  lands  occupied 
by  the  Cherokees  to  be  null  and  void  and  the  proceed- 
ings against  Worcester  to  have  been  without  warrant  of 
law.  The  Georgia  authorities  ignored  the  decision  and 
retained  Worcester  in  prison.  The  President  of  the  United 
States  did  not  undertake  to  enforce  the  decision  of  the 
Court.  It  was  common  rumor  that  he  declared  he  did 
not  intend  to  execute  it.  This  is  the  case  over  which 
the  gossip  went  round  that  the  President  said:  "John 
Marshall  has  made  his  decision;  now  let  him  execute  it." 
If  the  President  took  this  attitude  it  was  most  repre- 
hensible. It  was  an  unwarranted  executive  interference 
with  the  highest  Judicial  function.  The  Governor  of  the 
State  somewhat  later  pardoned  Worcester  and  he  was 
discharged  from  prison  on  the  Governor's  pardon  and 
not  on  the  Court's  order.  The  result  of  this  controversy 
was  a  harmful  strengthening  of  the  States '-rights  view  of 
the  Union  now  soon  to  be  made  the  absorbing  issue  in  the 
nullification  ordinance  of  South  Carolina. 

Nearly  twenty-five  years  more  now  elapsed  during  which 
period  the  principle  laid  down  in  Marbury  vs.  Madison 
was  applied  and  accepted  in  every  direction  and  the  rule 
of  the  Constitution  giving  the  Courts,  especially  the  United 
States  Courts,  and  most  especially  the  Supreme  Court  of 
the  United  States,  the  power  of  nullifying  all  legislative 
as  well  as  executive  acts  which  were,  in  the  opinion  of 
the  Court,  trying  the  cases  in  which  such  acts  were  in- 
volved, repugnant  to  the  Constitution,  became  fixed  as 
the  prime  doctrine  of  the  public  law  of  the  Republic. 

This  doctrine  was  now,  however,  through  an  indiscre- 
tion of  the  Chief  Justice  of  the  Supreme  Court  itself,  par- 
ticipated in  by  the  majority  of  the  Court,  destined  to 
receive  another  rude  shock.  I  refer  to  the  famous  Dred 


316  GOVERNMENT  AND  LIBERTY 

Scott  case.  Assuming  that  every  reader  of  this  book  is 
more  or  less  familiar  with  the  details  of  this  case,  I  will 
deal  with  it  only  in  outline.  Sometime  between  1830  and 
1840  one  Doctor  Emerson,  a  resident  and  citizen  of  the 
State  of  Missouri,  being  an  Army  Surgeon,  was  ordered 
to  Fort  Snelling,  in  the  Louisiana  Territory  north  of 
36°  30',  from  which  slavery  had  been  abolished  by  the 
Missouri  Compromise  Act  of  Congress  of  the  year  1820. 
The  Doctor,  nevertheless,  took  his  slave,  Dred  Scott,  with 
him  as  his  body-servant.  At  Fort  Snelling  Dred  Scott 
married  a  negro  woman,  the  slave  of  an  Army  officer  sta- 
tioned there,  and  Doctor  Emerson  purchased  this  woman 
from  her  master  and  took  both  of  these  negroes  back  to 
Missouri  in  the  year  1838.  Doctor  Emerson  died  in  the 
year  1844,  leaving  the  Scotts  to  his  wife  as  slaves.  They 
served  Mrs.  Emerson  until  1853,  when  Dred  Scott  brought 
a  suit  for  his  freedom  in  a  Missouri  Court,  on  the  ground 
that  his  residence  in  the  Louisiana  Territory  above  36°  30' 
had  made  him  a  free  man.  The  lower  court  of  Missouri 
decided  in  his  favor.  Mrs.  Emerson  then  appealed  the 
case  to  the  Supreme  Court  of  the  State,  which  decided  that, 
no  matter  what  the  result  of  residence  in  a  free  Territory 
might  be  as  to  a  slave  brought  into  it  by  his  master,  the 
law  of  Missouri  determined  the  status  of  the  negro  on  his 
return  to  Missouri. 

Before  the  Supreme  Court  of  the  State  had,  however, 
reached  its  decision,  Mrs.  Emerson  had  transferred  the 
Scotts  to  a  relative,  one  Sandford,  a  citizen  of  New  York, 
who  hired  them  out  in  the  State  of  Missouri,  and  Dred 
Scott  had  brought  a  suit  in  the  Circuit  Court  of  the  United 
States  before  Judge  Catron,  a  citizen  of  Tennessee,  against 
Sandford  for  his  liberty.  The  first  question  for  the  Cir- 
cuit Court  was,  of  course,  whether  Dred  Scott  could  sue. 


THE  EFFORT  OF  AMERICA  317 

The  jurisdiction  of  the  Circuit  Court  rested  upon  that 
clause  of  the  Constitution  which  confers  the  same  in  con- 
troversies between  citizens  of  different  States.  But  was 
Dred  Scott  a  citizen  of  Missouri?  Judge  Catron  held  that 
as  it  was  only  alleged  by  Sandford  that  Dred  Scott  was 
a  negro  descended  from  slave  parents,  and  that  as  there 
were  such  negroes  who  were  citizens  of  some  of  the  States, 
the  presumption  must  be  that  Dred  Scott  could  sue  in  his 
Court.  However,  before  the  case  came  to  decision  in  the 
Circuit  Court,  the  case  of  Scott  vs.  Emerson  in  the  Su- 
preme Court  of  the  State  was  decided  in  the  way  above 
recited,  and  Justice  Catron  finally  declared  that  his  Court 
must  follow  the  law  of  Missouri  upon  the  subject  as  ex- 
pounded by  the  Supreme  Court  of  the  State  of  Missouri, 
where  there  was  no  repugnance  to  the  Constitution,  laws, 
and  treaties  of  the  United  States;  and  the  law  of  Mis- 
souri was,  as  declared  by  the  Missouri  Supreme  Court,' 
that  the  condition  of  slavery  reattached  to  any  former 
slave  on  his  return  to  Missouri,  no  matter  where  he  had 
been  in  the  meantime. 

Dred  Scott  now  carried  his  case  by  writ  of  error  to  the 
Supreme  Court  of  the  United  States,  where  it  was  twice 
argued.  The  opinion  of  the  Court  was  written  by  Chief 
Justice  Taney,  and  was  concurred  in  by  a  decided  majority 
of  his  colleagues.  The  Chief  Justice  held  that  the  writ 
of  error  brought  up  the  entire  record  of  the  Circuit  Court 
for  examination.  As  we  have  seen,  there  were  two  main 
points  in  the  decision  of  the  Circuit  Court.  The  first 
was  as  to  the  jurisdiction  of  the  Court,  which  turned  upon 
whether  Dred  Scott  could  be  considered  a  citizen  of  Mis- 
souri or  not,  and  the  second  was  as  to  the  effect  of  his 
return  to  Missouri  after  his  sojourn  in  the  Louisiana  Ter- 
ritory. Chief  Justice  Taney  held  that  the  Circuit  Court 


3i8  GOVERNMENT  AND  LIBERTY 

erred  in  according  Scott  a  standing  in  court  since  he  was 
not  a  citizen  of  Missouri.  The  Chief  Justice  declared  that 
he  was  not  a  citizen  because  he  could  not  be.  This  was 
certainly  enough  and  it  would  certainly  have  been  the 
course  of  wisdom  to  have  simply  remanded  the  case  to 
the  Circuit  Court  with  the  order  to  dismiss  it  for  want 
of  jurisdiction.  If  this  course  had  been  followed  there 
would  probably  have  been  little  comment  upon  it.  But 
the  Chief  Justice  went  further  and  reviewed  the  second 
point  in  the  decision  of  the  Circuit  Court,  viz.:  that  the 
status  of  slavery  reattached  to  Scott  on  his  return  to 
Missouri.  Here  again  the  Chief  Justice  would  have  been 
wiser  to  have  simply  confirmed  the  judgment  of  the  Court 
below,  and  this  also  would  have,  in  all  probability,  caused 
but  little  comment.  But  he  went  further  and  took  up 
the  question  whether  the  Louisiana  Territory  above  36°  31' 
could  be  free  Territory  under  the  Constitution  of  the  United 
States.  This  question  was  not  decided  by  the  Court  below, 
was  not  even  before  the  court  below,  and  was  not  neces- 
sarily involved  in  what  was  decided  or  considered  by  the 
Court  below.  This  part  of  the  Chief  Justice's  opinion 
was,  therefore,  purely  obiter  dictum.  He  held  that  under 
the  Constitution  of  the  United  States  Congress  could  not 
exclude  slavery  from  any  part  of  the  Territory  of  the  United 
States. 

It  is  not  necessary  for  our  purpose  to  go  into  the  Chief 
Justice's  argument  upon  this  point.  The  thing  of  impor- 
tance for  us  is  the  fact  that  this  attitude  of  the  Supreme 
Court  of  the  United  States  brought  down  upon  that  tri- 
bunal the  hostility  of  the  new  Republican  party,  the 
party,  which  in  less  than  four  years  was  to  take  posses- 
sion of  the  Government.  Mr.  Lincoln,  the  man  destined 
to  occupy  the  Presidential  chair,  arraigned  the  Court  most 


THE  EFFORT  OF  AMERICA  319 

severely.  He  regarded  the  dictum  as  a  political  rather 
than  a  judicial  matter.  The  only  remedies  which  he  pro- 
posed, however,  were  either  to  induce  the  Court  by  argu- 
ment to  reverse  its  opinion,  or  to  induce  the  people  by 
argument  to  override  it  by  a  constitutional  Amendment 
in  the  manner  provided  in  the  Constitution  itself.  All 
this  was  regular,  proper,  legitimate,  and  conservative,  and 
not  intended  to  introduce  or  recommend  any  novel  method 
for  solving  constitutional  questions.  The  controversy  did, 
however,  shake  the  position  of  the  Court,  and  the  period 
of  confusion  and  War  which  quickly  followed  was  not  a 
favorable  time  in  which  to  re-establish  it. 

As  was  seen  in  the  noted  Merryman  case,  the  Court 
could  not  even  protect  the  Individual  against  the  exer- 
cise of  extraordinary  powers  by  the  Executive,  to  say  noth- 
ing of  the  Legislature.  President  Lincoln  had  Merryman 
arrested  in  the  State  of  Maryland,  a  State  in  which  no 
Secession  ordinance  had  been  passed,  by  military  order, 
and  had  him  incarcerated  in  a  military  prison.  He  sus- 
pended the  writ  of  habeas  corpus,  and  under  this  suspen- 
sion held  Merryman  in  confinement,  despite  the  fact  that 
the  Chief  Justice  of  the  United  States  issued  the  writ  in 
this  case  and,  when  the  military  officer  to  which  it  was 
directed  declined  to  make  any  return  and  failed  to  pro- 
duce the  prisoner  in  Court,  issued  a  writ  of  attachment 
for  the  body  of  the  commanding  officer  holding  Merry- 
man in  confinement.  The  Marshal  of  the  Court  was 
prevented  from  serving  this  latter  writ  by  the  armed 
sentinel  at  the  headquarters  of  the  military  commander. 
The  Court  now  acquiesced  in  the  principle  that  the  po- 
litical departments  of  the  Government  may  suspend  the 
constitutional  Immunities  of  the  Individual  against  gov- 
ernmental power  in  time  of  war  or  rebellion. 


320  GOVERNMENT  AND  LIBERTY 

At  the  close  of  the  Civil  War  the  Court  began  again 
to  assert  itself  against  any  further  suspensions  of  these 
Immunities.  In  the  famous  Milligan  case  it  held  that 
the  suspension  of  the  writ  of  habeas  corpus  did  not  war- 
rant arbitrary  arrest,  nor  trial  by  extraordinary  tribunals, 
nor  according  to  extraordinary  methods,  and  that  where 
the  Courts  were  open  and  in  the  proper  and  unobstructed 
exercise  of  their  jurisdiction,  the  Government  could  not 
constitutionally  establish  and  administer  martial  law.  The 
judgment  of  the  Court  was  obeyed  and  Milligan  was 
liberated  from  his  peril  under  the  military  tribunal. 

During  the  period  of  Reconstruction  three  cases  came 
before  the  Court,  the  decisions  in  which  served  to  make 
the  position  of  the  Court  as  the  ultimate  interpreter  of 
the  Constitution  against  the  Congress  itself  a  little  more 
fixed  and  clear  than  it  had  ever  been  before. 

The  first  of  these  cases  was  that  of  Mississippi  vs.  John- 
son. One  W.  L.  Sharkey,  who  had  been  provisional  Gov- 
ernor of  Mississippi  by  President  Johnson's  appointment, 
undertook  to  obtain  from  the  Supreme  Court  of  the  United 
States  an  injunction  against  President  Johnson,  to  pre- 
vent him  from  executing  in  Mississippi  the  Reconstruc- 
tion Acts  of  March,  1867.  The  object  of  Ex-Governor 
Sharkey  was  to  test  before  the  Supreme  Court  the  con- 
stitutionality of  these  Congressional  Statutes.  The  Court 
refused  the  injunction  on  the  ground  that  the  President 
of  the  United  States,  while  in  office,  is  not  subject  to  the 
jurisdiction  of  any  Court  save  only  the  Senate  of  the 
United  States  as  the  Court  of  Impeachment. 

It  was  thought  at  the  time  that  the  only  reason  upon 
which  the  Court  declined  jurisdiction  was  the  official  char- 
acter of  the  person  sought  to  be  made  defendant.  The 
Governor  of  Georgia,  one  Jenkins,  conceived  that  this 


THE  EFFORT  OF  AMERICA  321 

obstacle  might  be  overcome  by  making  subordinate  offi- 
cials to  the  President  defendants.  At  his  instigation  the 
State  of  Georgia  petitioned  the  Supreme  Court  of  the 
United  States  to  issue  a  writ  of  injunction  against  Stanton, 
Secretary  of  War,  Grant,  Commander-in-Chief  of  the  Army, 
and  Pope,  the  Commander  of  the  District  in  which  Georgia 
lay,  forbidding  them  to  put  into  execution  or  to  cause  to 
be  put  into  execution  the  Reconstruction  Acts  passed  by 
Congress  in  March  of  1867.  The  Attorney-General  of  the 
United  States,  Mr.  Stanbery,  took  the  ground  in  a  very 
masterful  argument  that  this  was  a  purely  political  ques- 
tion in  which  no  Individual  Immunity  was  primarily  in- 
volved and  that  the  Court  had,  therefore,  no  jurisdiction 
in  the  premises.  It  was  general  opinion  at  that  time  that 
the  power  of  the  Court  to  pronounce  Acts  of  Congress 
null  and  void  because  of  repugnance  to  the  Constitution 
was  without  limitation  as  to  subject,  although  the  Court 
itself  in  the  case  of  Luther  vs.  Borden  had  intimated  that 
questions  primarily  political  were  not  subject  to  its  juris- 
diction. The  Court  now  came  out  squarely  and  declared 
its  adherence  to  this  principle  and  from  that  day  to  this 
the  Court  has  strictly  adhered  to  it.  So  that  it  may 
now  be  said  that  in  order  to  move  the  Supreme  Court 
of  the  United  States,  and  in  fact  any  of  the  Courts,  to 
take  jurisdiction  where  the  nullification  of  Legislative  Acts 
as  repugnant  to  the  Constitution  is  the  necessary  condi- 
tion of  the  relief  sought,  the  matter  must  be  presented  to 
the  Court  in  the  form  of  a  case,  that  is,  of  a  regular  law- 
suit, or  suit  in  equity,  in  which  the  party  asking  relief 
shall  make  it  appear,  prima  facie,  that  the  question  pri- 
marily involved  is  an  Individual  Right  or  Immunity  against 
governmental  power  guaranteed  to  him  by  the  Constitu- 
tion itself.  Of  course,  where  the  Individual  Immunity  in- 


322  GOVERNMENT  AND  LIBERTY 

volves  no  political  question,  the  matter  would  be  clear 
enough.  But  what  is  a  political  question  as  distinguished 
from  one  purely  of  Private  Right,  and,  in  case  the  two 
are  involved  in  the  suit,  which  is  primary  and  which 
secondary,  and  how  far  primary  or  how  far  secondary, 
these  are  all  very  difficult  points  to  determine.  The  Con- 
stitution itself  does  not  wholly  and  expressly  determine 
them.  The  details,  at  any  rate,  of  the  determination  are 
to  be  fixed  either  by  Congress  or  the  Judiciary.  If  by 
Congress,  then  the  Judicial  protection  of  the  Immunities 
of  the  Individual  against  governmental  power  would  be 
of  little  value.  It  must  be,  then,  the  Judiciary  which  shall 
finally  settle  these  points  as  well  as  all  others  necessary 
to  the  defense  of  these  Immunities. 

It  was  much  to  be  desired  in  the  period  of  Reconstruc- 
tion, i.  e.j  from  1865  to  1875,  that  these  specific  questions 
should  have  been  considered  and  solved.  Except  for  the 
trickery  of  the  Congress  of  1868  this  might  have  been. 
I  refer  to  the  means  employed  by  Congress  to  prevent  a 
decision  being  reached  in  the  noted  McCardle  case,  the 
chief  points  of  which  were  as  follows:  One  W.  H.  Mc- 
Cardle, a  newspaper  editor  in  the  State  of  Mississippi, 
was  seized  and  confined  by  the  military  authority  under 
which  the  State  was  governed  in  accordance  with  the 
Reconstruction  Acts  of  Congress.  He  petitioned  the  Cir- 
cuit Court  of  the  United  States  for  a  writ  of  habeas  cor- 
pus. The  writ  was  addressed  to  General  Gillem,  mili- 
tary Commander  of  the  Reconstruction  District  in  which 
Mississippi  lay.  The  General  made  answer  to  the  writ, 
acknowledging  that  he  had  arrested  McCardle  and  still 
held  him  in  custody  and  pleading  the  Reconstruction 
Acts  in  justification.  The  Court  expressed  its  satisfac- 
tion with  the  plea  and  ordered  its  Marshal  to  remand 


THE  EFFORT  OF  AMERICA  323 

the  prisoner,  who  had  from  the  time  of  the  serving  of  the 
writ  of  habeas  corpus  been  in  the  custody  of  the  Mar- 
shal, to  the  keeping  of  the  military  authorities.  Mc- 
Cardle's  counsel  then  appealed  the  case  to  the  Supreme 
Court  of  the  United  States.  The  Constitution  vests  in 
Congress  the  power  to  regulate  the  matter  of  appeal  from 
the  lower  Courts  to  the  Supreme  Court,  and  Congress  had 
by  an  Act  passed  February  5,  1867,  authorized  the  appeal 
of  such  cases  as  the  McCardle  case  from  the  Circuit  Court 
to  the  Supreme  Court;  at  least  the  Supreme  Court  itself 
interpreted  the  Congressional  Act  as  authorizing  the  ap- 
peal in  the  McCardle  case  and  entertained  it  by  denying 
the  motion  of  the  counsel  of  the  military  authorities  to 
dismiss  it. 

Here  was  now  at  last  the  jurisdiction  established  in  a 
case  primarily  of  Private  Right,  in  a  case  for  protecting 
the  constitutional  right  of  the  Individual  to  indictment 
by  a  Grand  Jury  and  trial  by  a  Petit  Jury  in  the  Civil 
Courts  of  his  vicinage  against  the  power  of  the  Govern- 
ment to  make  him  subject,  in  time  of  peace,  to  the  juris- 
diction of  a  military  tribunal.  Inasmuch  as  the  military 
tribunal  and  its  processes  were  authorized  by  the  Recon- 
struction Acts  of  Congress,  the  decision  of  the  case  must 
turn  in  the  Supreme  Court  upon  the  constitutionality  of 
these  Acts.  The  Court  evidently  regarded  this,  however, 
as  secondary  to  the  protection  of  the  Private  Immunity 
against  arbitrary  power.  The  Congress  and  the  leaders 
of  the  Republican  party  were  greatly  agitated  over  the 
prospect,  while  the  President,  Johnson,  looked  calmly  on, 
rejoicing  at  the  opportunity  of  having  the  constitutionality 
of  the  Reconstruction  Acts  finally  tested.  But  he  was 
destined  to  suffer  disappointment.  The  Congress,  being 
overwhelmingly  Republican,  speedily  repealed  the  Appeals 


324  GOVERNMENT  AND  LIBERTY 

Act  of  February  5,  1867,  making  the  repealing  Statute 
cover  all  appeals  then  on  record  as  well  as  future  attempts 
to  appeal,  and  when  the  President  vetoed  the  bill,  Con- 
gress repassed  it  promptly  over  the  veto  by  the  necessary 
two-thirds  majority.  In  this  shifty  way  Congress  not 
only  avoided  a  decision  by  the  Court  on  the  constitution- 
ality of  the  Reconstruction  Acts,  but  also  deprived  Ameri- 
can Jurisprudence  of  an  authoritative  direct  interpreta- 
tion of  some  of  the  important  points  in  the  relation  of 
the  constitutional  Immunities  of  the  Individual  to  the 
so-called  political  questions  which  the  Court  is  shy  of 
touching  in  defending  the  Individual  Immunity  against 
governmental  power. 

The  constitutional  Amendments  following  the  Civil  War 
increased  and  strengthened  the  Immunities  of  the  Individ- 
ual against  governmental  power  at  the  same  time  that  they 
increased  the  powers  of  the  central  Government  over  against 
those  of  the  States.  I  said  "  the  Immunities  of  the  Individ- 
ual," but  I  should  have  said  "the  Immunities  of  Persons," 
because  Person  is  the  word  used  in  the  Constitution  and  Per- 
son is,  under  the  interpretation  of  the  Courts,  a  broader 
term  than  Individual,  in  that  Individual  is  synonymous 
with  natural  Person,  while  Person  covers  also  artificial 
Persons,  corporations.  The  three  great  additions  to  Civil 
Liberty  made  by  the  Thirteenth  and  Fourteenth  Amend- 
ments, which  prevent  the  National  Government  or  any 
State  of  the  Union  from  making  any  Person  a  slave  and 
prevent  any  State  of  the  Union  from  depriving  any  Per- 
son of  life,  liberty,  or  property  without  due  process  of  law 
and  from  denying  to  any  Person  the  equal  protection  of 
the  laws,  completed  the  realm  of  the  Individual  Immu- 
nity against  governmental  power,  and  the  Judicial  inter- 
pretation of  these  Amendments  in  a  sense  generally  fa- 


THE  EFFORT  OF  AMERICA  325 

,  vorable  to  Liberty  gave  to  the  United  States  of  America 
I  the  most  perfect  system  of  Civil  Liberty,  the  best  pro- 
tected and  guaranteed  against  governmental  power,  ever 
(attained  in  the  civilized  world. 

I  said  "gave,"  not  "has  given,"  because  in  the  last  few 
years  a  very  remarkable  and  to  many  a  very  discourag- 
ing change  in  popular  opinion,  if  we  can  consider  the 
actions  of  the  politicians,  the  Congress,  and  the  State 
Legislatures  as  indicative  of  the  popular  opinion,  has 
become  manifest  concerning  the  relative  spheres  of 
Government  and  Liberty  and  has  already  led  to  a  most 
serious  modification  of  our  constitutional  law.  More- 
over, there  does  not  appear  at  this  moment  any  pros- 
pect of  this  new  movement  checking  itself  or  being 
checked.  On  the  other  hand,  the  pace  appears  to  be 
a  continually  accelerating  one.  It  appears  rather  as  if  a 
new  era  had  begun.  Many  say  and  some  doubtless 
really  think  that  it  is  an  era  of  progress,  and  hail  it  as  if 
the  whole  course  of  the  world's  history  hitherto  had  been 
a  failure  and  even  a  fraud.  But  more  mature,  dispassion- 
ate, and  experienced  thinkers  view  the  situation  and  its 
tendencies  with  apprehension,  not  to  say  alarm.  They 
see  the  distinctions  between  the  Old  World  and  the  New 
slipping  away,  and  that,  too,  not  by  the  Old  World  con- 
tinuing to  follow  in  the  course  marked  out  by  the  New, 
as  was  the  case  from,  let  us  say,  the  year  1848  to  1898, 
but  by  the  New  returning  to  the  ideas  and  practises  of 
the  Old.  As  indicated,  the  change  began  with  the  Spanish- 
American  War  of  1898  and  with  the  acquisition  of  terri- 
tory separated  geographically,  and  of  people  separated 
ethnically,  from  the  territory  and  people  of  the  United 
States.  The  twisting  of  the  Constitution  to  meet  the 
exigencies  thus  created  has  been  followed  by  changes  of 


326  GOVERNMENT  AND  LIBERTY 

the  Constitution  internal  to  the  Union  itself  of  a  grave 
character,  and  those  already  consummated  threaten  to 
lead  on  to  many  more,  ending  no  one  can  tell  where. 

I  will  not,  however,  go  into  this  to  us  all-important  sub- 
ject any  further  at  this  juncture,  but  will  reserve  it  for  fuller 
and  more  minute  discussion  after  I  shall  have  presented  the 
modern  solution  given  by  the  South  and  Central  American 
states  and  Mexico  to  the  great  problem  which  is  the  theme 
of  this  work 


CHAPTER  II 

THE  PRESENT  CONSTITUTIONS   OF   THE   STATES   OF 
SOUTH  AMERICA 

THE  independence  of  the  states  of  South  America  and 
their  constitutional  systems  sprang  directly  or  indirectly 
out  of  the  French  Revolution.  Originally,  in  so  far  as  it 
is  necessary  to  our  purpose  to  consider  them,  they  were 
Colonies  of  Spain  and  Portugal,  and  were  the  creation  of 
a  dominant  race  imposing  itself  by  the  power  of  the  sword 
on  the  subject  races  and  attaining  legitimacy  through  the 
religious  system  of  the  Roman  Catholic  Church,  the  Eu- 
ropean method  of  state-building. 

The  occupation  of  Spain  and  Portugal  by  the  armies 
of  Napoleon  in  the  first  decade  of  the  nineteenth  century 
gave  the  necessary  impulse.  The  great  Demoralizer  of 
Europe  demoralized  the  sense  of  loyalty  in  the  American 
Colonies  of  the  European  states  and  set  them  upon  the 
road  of  Revolution.  At  first  it  was  substantially  the  domi- 
nant race,  the  Europeans  by  birth  or  by  descent,  in  the 
several  Colonies  who  declared  and  won  independence 
against  the  mother  countries  and  only  later  and  gradu- 
ally have  the  half-breeds  and  pure  aborigines  come  to 
exert  an  influence  in  the  development  of  the  states  pro- 
ceeding therefrom.  That  influence  has  not,  however,  pro- 
duced any  great  changes  in  the  original  Constitutions. 
These  documents  still  bear  the  stamp  of  the  political  phi- 
losophy of  the  French  Revolution,  viz.:  national  sover- 
eignty originally  organized  in  Convention  back  of  the 

327 


328  GOVERNMENT  AND  LIBERTY 

Constitution,  creating  Government  and  delimiting  a  sphere 
of  Individual  Immunity  against  governmental  power. 
They  also  manifest,  in  some  degree,  at  least,  the  influence 
of  the  Constitution  of  the  United  States,  especially  in  the 
more  independent  power  of  the  Executive  and  in  the 
position  of  the  Judiciary. 

The  original  Constitutions  of  all  ten  of  the  South  Ameri- 
can states  were  framed  and  adopted  by  National  Constit- 
uent Conventions,  and  in  this  respect  they  fulfil  the 
first  condition  for  the  solution  of  our  problem  of  the  rec- 
onciliation of  Government  with  Liberty.  But  in  the 
system  and  method  for  constitutional  revision,  or  amend- 
ment, that  is,  in  the  organization  of  a  continuing  sov- 
ereign power  independent  of,  separate  from,  and  supreme 
over,  the  Government,  they  are  not  all  so  fortunate. 
Only  two  of  them,  viz.:  the  Argentine  Union  and  Para- 
guay are  so. 

On  proposition  of  the  two  legislative  Houses,  by  two- 
thirds  majority  in  each,  a  National  Convention  is  assem- 
bled in  these  two  states  which  adopts  the  amendment 
or  revision.  In  all  the  rest  the  regular  legislative  branch 
of  the  Government  amends  or  revises  the  Constitution. 
The  Constitutions  of  Bolivia  and  Colombia  provide  for 
revision  or  amendment  by  a  legislative  Act  merely  with 
a  majority  of  two-thirds  of  those  voting  thereon  in  each 
House,  a  quorum  being  present.  That  of  Brazil  makes 
the  like  provision  with  the  modification  that  the  amend- 
ment or  revision  must  be  proposed  by  the  preceding  Legis- 
lature, with  a  two-thirds  majority  in  each  House,  or  by 
the  Legislatures  of  two- thirds  of  the  States  of  the  Bra- 
zilian Union.  That  of  Chili  makes  the  like  provision  as 
to  the  adoption  of  constitutional  changes,  with  the  modi- 
fication that  if  the  President  agrees  with  the  Chambers 


THE  EFFORT  OF  AMERICA  329 

the  passage  of  the  proposition  of  amendment  by  two 
Legislatures  in  succession  does  not  require  the  extraor- 
dinary, or  two-thirds,  majority.  The  Constitutions  of 
Ecuador  and  Peru  require  for  their  amendment  only  the 
passage  of  the  proposition  by  two  Legislatures  in  succes- 
sion by  the  ordinary  majority  required  for  the  enactment 
of  Statutes.  That  of  Uruguay  requires  that  the  proposi- 
tion of  amendment  made  by  one  Legislature  shall  be 
adopted  by  the  succeeding  Legislature  elected  upon  this 
issue.  Finally  the  Constitution  of  Venezuela  provides  for 
its  amendment  either  by  the  Legislatures  of  a  simple  ma- 
jority of  the  States,  when  the  proposition  is  first  made 
on  the  initiative  of  the  Legislatures  of  three-fourths  of 
the  States  of  the  Union  and  approved  by  the  national 
Legislature,  the  Congress,  or  by  the  Legislatures  of  three- 
fourths  of  the  States,  when  the  proposition  is  initiated  by 
the  Congress. 

In  these  eight  states,  therefore,  there  is  no  separation 
of  the  organ  of  sovereignty  from  the  organs  of  Govern- 
ment. The  ordinary  legislative  Chambers  act  both  as  sov- 
ereign and  as  legislative  branch  of  the  Government.  The 
only  difference  lies  in  the  method  of  action  and  in  some 
cases  in  the  majority  necessary  for  action  also.  But  this 
is  not  at  all  sufficient  to  guard  the  constitutional  Immu- 
nities of  the  Individual  against  the  encroachments  of  the 
Legislature  itself.  We  are,  therefore,  compelled  to  say 
that  the  Constitutions  of  these  eight  states  fail  entirely 
to  furnish  the  fundamental  element  for  the  solution  of  our 
problem,  viz. :  the  organization  of  a  sovereign  power  sep- 
arate from,  independent  of,  and  commanding  over  all  the 
organs  of  Government.  In  fact,  there  is  but  one  real 
state  in  South  America  which  furnishes  us  with  this  primal 
indispensable  condition,  viz.:  the  Argentine  Union. 


330  GOVERNMENT  AND  LIBERTY 

On  the  other  hand,  every  South  American  state  has 
written  into  its  Constitution  a  full  Bill  of  Rights,  a  well- 
defined  and  well-delimited  domain  of  Individual  Immu- 
nity from  governmental  power.  In  general  it  is  provided 
therein  that  every  man  shall  be  the  equal  of  every  other 
before  the  law;  that  no  man  shall  be  arbitrarily  arrested 
or  detained;  that  no  man  shall  be  tried  or  condemned 
without  due  process  of  law,  that  the  domicile  is  invio- 
lable; that  the  right  to  property  is  inviolable  and  con- 
fiscation illegal;  that  taxation  must  be  equally  imposed, 
and  that  the  taking  of  property  by  eminent  domain  must 
be  for  a  public  purpose  and  with  due  compensation;  that 
thought  and  speech  and  conscience  shall  be  free;  that 
religion  shall  be  free,  but  with  an  established  Church  as 
the  recommended  religion;  that  association  for  all  lawful 
purposes  shall  be  free;  that  peaceable  assembly  for  peti- 
tioning the  Government  or  for  any  other  lawful  purposes 
shall  be  free;  and  that  the  press  shall  not  be  subject  to 
any  censorship,  but  responsible  through  the  ordinary  and 
lawful  procedure  for  libel  of  private  character.  Some  of 
the  Constitutions  go  further  than  this  and  secure  to  the 
Individual  freedom  of  migration,  immigration,  and  emigra- 
tion and  of  industry  and  occupation. 

So  far,  then,  as  the  second  element  in  the  solution  of 
the  problem  of  the  reconciliation  of  Government  with 
Liberty  is  concerned,  viz.:  a  well-defined  and  delimited 
realm  of  Individual  Immunity  against  governmental  power, 
we  may  say  that  the  Constitutions  of  all  the  South  Ameri- 
can states  fairly  fulfil  the  requirement. 

When,  however,  we  come  to  the  final  element  of  the 
problem,  we  find  more  difficulty  in  reaching  any  satis- 
factory conclusions.  As  we  have  already  seen,  the  two 
points  to  be  considered  in  this  connection  are  the  general 


I 


THE  EFFORT  OF  AMERICA  331 

structure  of  the  Government  and  the  position  and  power 
of  the  Judiciary. 

First,  then,  as  to  the  structure  of  the  Government. 
Three  of  the  ten  South  American  states,  viz.:  Argentina, 
Brazil,  and  Venezuela,  have  federal  systems  of  Govern- 
ment, after  the  model,  in  chief  respect,  of  the  United  States 
of  North  America;  that  is,  on  the  principle  that  the  cen- 
tral Government  is  one  of  enumerated  powers,  and  the 
States  of  the  Union  possess  residuary  powers,  under  the 
limitations  that  they  may  exercise  no  powers  granted  ex- 
clusively to  the  General  Government  or  forbidden  them 
in  behalf  of  the  Immunity  of  the  Individual  against  gov- 
ernmental power.  The  three  South  American  federal  sys- 
tems vest,  however,  larger  powers  of  legislation  in  the 
Congress,  the  Legislature  of  the  central  Government,  than 
does  the  system  of  the  great  North  American  Republic, 
in  that  the  commercial  and  criminal  codes  are,  by  au- 
thority of  the  Constitutions  of  these  three  South  Ameri- 
can states,  national  Statutes.  Until  recently  this  would 
not  have  been  regarded  as  favorable  to  Individual  Lib- 
erty, but  the  most  modern  political  thought  and  experi- 
ence now  seem  to  take  the  opposite  view.  The  national 
opinion  upon  these  subjects  seems  now  to  be  regarded  as 
favoring  a  larger  Individual  Liberty  than  the  local  opinion, 
and  when  we  remember  that  in  our  own  experience  it  was 
the  local  law  which  tolerated  slavery  and  the  national  law 
which  abolished  it,  there  seems  some  reason  for  this  change 
of  opinion.  However  this  may  be,  we  can  safely  affirm 
that  the  federal  system  of  Government  is  generally  more 
favorable  to  Individual  Liberty  than  the  centralized  sys- 
tem. In  the  distribution  of  governmental  power  between 
the  central  Government  and  the  States  of  the  Union  in 
these  systems,  there  is  less  danger  of  governmental  abso- 


332  GOVERNMENT  AND  LIBERTY 

lutism,  in  that  the  sovereign  power  making  this  distribu- 
tion must  be  kept  in  more  distinct  and  independent  or- 
ganization than  is  apt  to  be  the  case  in  systems  of  cen- 
tralized Government.  And  it  is  just  this  independent 
organization  of  the  sovereign  power  back  of  all  Govern- 
ment, which,  as  we  have  seen,  is  the  primal  condi- 
tion of  a  real  Individual  Immunity  against  governmental 
power. 

In  all  of  the  South  American  governmental  systems, 
whether  federal  or  centralized,  the  powers  of  Government 
are  distributed  between  the  Legislature,  Executive,  and 
Judiciary,  according  to  their  nature,  and  a  greater  or  less 
independence  between  the  departments  is  constitutionally 
maintained.  There  are  no  Parliamentary  Governments  in 
South  America.  All  of  them  are  what  may  be  termed, 
from  this  point  of  view,  Presidential  departmental  Gov- 
ernments, the  so-called  check-and-balance  system.  Never- 
theless, as  we  shall  see  in  looking  into  these  systems  a 
little  more  closely,  there  is  more  tendency  manifest  in 
the  direction  of  Parliamentarism,  theoretically  at  least, 
than  in  the  North  American  system. 

In  all  of  these  Governments,  except  only  those  of  Brazil 
and  Uruguay,  not  only  is  mention  made  in  the  Constitu- 
tion of  Ministers  of  State  and  a  Ministry  and  the  method 
of  their  appointment  and  the  necessary  qualifications  for 
appointment  prescribed,  but  the  Ministers  are  constitu- 
tionally allowed  seat  and  voice,  but  not  vote,  in  the  legis- 
lative Chambers  and  are  made  solidly  as  well  as  sepa* 
rately  responsible  for  their  acts.  This  responsibility  is  in 
all  these  cases  enforced  by  impeachment  brought  by  the 
Lower  House  of  the  Legislature  and  decreed  by  the  Sen- 
ate, and  in  Ecuador  and  Venezuela  a  mere  vote  of  censure 
by  the  Chamber  of  Deputies  is  sufficient  to  remove  the 


THE  EFFORT  OF  AMERICA  333 

Ministry  as  a  whole.  This  is  certainly,  in  these  two  cases 
at  least,  quite  an  approach  to  Parliamentarism. 

In  Brazil  and  Uruguay,  on  the  other  hand,  the  check- 
and-balance  system  is  preserved,  theoretically  at  least,  in 
full  vigor.  The  Ministers  have  neither  seat,  voice,  nor 
vote  in  the  Chambers  and  the  only  method  of  deposing 
them  is  by  individual  impeachment  or  by  a  regular  judi- 
cial procedure.  Only  these  two  states  of  South  America 
preserve,  by  their  constitutional  law,  the  full  benefit  of 
the  check-and-balance  system  in  impeding  Government 
from  encroaching  upon  the  constitutional  domain  of  In- 
dividual Liberty.  The  rest  provide  a  somewhat  easier 
co-operation  of  the  governmental  branches  and  admit 
at  least  a  somewhat  more  probable  combination  of  them 
over  against  that  domain  of  Individual  Liberty. 

Moreover,  the  Constitutions  of  all  the  South  American 
states,  except  only  that  of  Venezuela,  vest  the  veto  power 
over  legislative  acts  in  the  President,  or  chief  Executive, 
which  may  indeed  be  overcome  by  the  Legislature  through 
repetition  of  the  passage  of  the  Act,  by  two-thirds  ma- 
jority in  the  cases  of  Argentina,  Brazil,  Colombia,  Chili, 
and  Paraguay,  or  by  simple  majority  only  in  the  cases 
of  Bolivia,  Ecuador,  Peru,  and  Uruguay.  Here  is  again, 
of  course,  a  certain  possible  check  upon  legislation  hostile 
to  Individual  Liberty.  It  is  not,  however,  very  reliable. 

So  much  for  the  relation  of  the  organs  of  Government 
to  each  other  in  the  employment  of  their  functions.  Let 
us  now  examine  briefly  the  construction  of  the  organs  of 
Government  and  see  if  we  find  in  the  same  any  further 
protection,  direct  or  indirect,  for  the  sphere  of  Individual 
Liberty. 

In  all  the  South  American  states  the  bicameral  system 
of  the  Legislature  prevails,  generally,  and,  with  consid- 


334  GOVERNMENT  AND  LIBERTY 

erable  length  of  term.  One  of  the  ten,  Peru,  has  a  six 
years'  term  for  the  Deputies;  five,  Argentina,  Bolivia, 
Colombia,  Paraguay,  and  Venezuela,  have  a  four  years' 
term;  three,  Brazil,  Chili,  and  Uruguay,  have  a  three 
years'  term,  and  one,  Ecuador  has  a  two  years'  term.  For 
the  members  of  the  Senate  two,  Argentina  and  Brazil, 
have  a  nine  years'  term;  six,  Bolivia,  Colombia,  Chili, 
Paraguay,  Peru,  and  Uruguay,  have  a  six  years'  term,  and 
two,  Ecuador  and  Venezuela,  have  a  four  years'  term. 
Generally,  the  change  of  members  in  the  Deputy  Cham- 
bers is  total,  except  that  in  Argentina  and  Paraguay  the 
change  is  by  halves,  and  in  Peru  by  thirds.  On  the  other 
hand,  the  change  in  the  membership  of  the  Senate  is  grad- 
ual in  all  cases,  except  Ecuador  and  Venezuela,  and  this 
gradual  change  in  all  cases,  except  that  of  Chili,  is  by 
thirds.  In  Chili  it  is  by  halves.  Moreover,  some  of  these 
states  require  of  the  members  of  the  Legislature  or  of  one 
House  thereof  a  property  qualification.  Bolivia,  Chili, 
Peru,  and  Uruguay  require  it  for  the  members  of  both 
Houses.  Colombia  requires  it  for  the  members  of  the 
Senate  only. 

Now,  all  of  these  constitutional  requirements  are  usu- 
ally considered  as  being  favorable  to  Liberty.  The  prob- 
abilities are  certainly  on  that  side.  From  probability  to 
certainty  is,  however,  a  step,  short  or  long,  where  other 
conditions  may  bring  unexpected  results. 

There  are,  on  the  other  hand,  certain  other  provisions 
prescribing  the  relation  between  the  Houses  in  the  course 
of  legislative  action  which  point  rather  in  the  other  di- 
rection. For  example,  only  the  states  of  Ecuador  and 
Peru  accord  equal  powers  of  initiating  and  enacting  legis- 
lation upon  all  subjects  to  the  two  Chambers.  All  the 
others  vest  the  power  of  initiating  revenue  measures  in 


THE  EFFORT  OF  AMERICA  335 

the  House  of  Deputies  exclusively;  and  the  states  of  Ar- 
gentina, Bolivia,  Brazil,  Chili,  and  Paraguay  also  confer 
upon  this  House  alone  the  initiation  of  bills  for  the  re- 
cruiting of  the  Army. 

Moreover,  the  most  of  these  states  make  Constitutional 
provision  whereby  one  Chamber  of  the  Legislature  may 
finally  overcome  the  opposition  of  the  other.  For  example, 
the  Argentine  Constitution  ordains  that  a  bill  originating 
in  one  House  and  changed  or  amended  by  the  other,  which 
changes  or  amendments  are  then  rejected  by  the  Chamber 
originating  the  bill,  becomes  law  in  the  amended  form 
when  voted  by  the  revising  Chamber  by  a  two-thirds  ma- 
jority unless  rejected  finally  by  the  originating  Chamber 
by  two-thirds  majority.  The  Brazilian  Constitution  makes 
the  same  provision,  also  that  of  Paraguay.  The  Consti- 
tution of  Bolivia  ordains  that  a  bill  originating  in  one 
Chamber  and  rejected  in  toto  by  the  other  becomes  law 
when  voted  by  the  originating  Chamber  by  a  two-thirds 
majority  unless  finally  rejected  by  the  other  Chamber  by 
a  two-thirds  majority,  and  that  when  the  two  Chambers 
cannot  separately  agree  upon  amendments  offered  to  the 
bill,  they  shall  meet  in  joint  assembly  and  arrive  at  a 
decision  in  this  manner.  The  Constitution  of  Chili  makes 
the  same  provision  regarding  the  passage  of  a  measure 
in  toto  as  that  of  Bolivia  and  regarding  the  passage  of 
an  amended  bill  as  those  of  Argentina,  Brazil,  and  Paraguay. 
The  Constitution  of  the  state  of  Uruguay  ordains  that 
when  the  two  Chambers  cannot  agree  upon  a  bill  origi- 
nating in  either,  they  shall  meet  in  joint  assembly  and  pass 
the  bill  by  a  two-thirds  majority  in  the  joint  assembly, 
otherwise  the  bill  will  fail;  and  finally  the  Constitution 
of  the  state  of  Venezuela  provides  that  in  case  of  conflict 
between  the  two  Chambers  over  a  bill  originating  in  either, 


336  GOVERNMENT  AND  LIBERTY 

the  originating  Chamber  may  invite  the  other  chamber  to 
a  joint  sitting,  but  the  Constitution  does  not  compel  the 
acceptance  of  the  invitation.  Only  three  of  these  states, 
viz.:  Colombia,  Ecuador,  and  Peru,  do  not  constitution- 
ally empower  one  Chamber  of  the  Legislature  to  overcome 
the  opposition  of  the  other  Chamber  to  a  bill  which  it 
may  originate.  Now  the  states  which  do  make  such  pro- 
vision in  their  Constitutions  probably  facilitate  thereby 
legislative  action  and  this  increased  facility  of  action  has, 
generally,  a  tendency  to  expand  Government  at  the  ex- 
pense of  Individual  Immunity  against  governmental  power. 
Finally,  the  method  of  electing  the  Executive  and  the 
members  of  the  legislative  Chambers  deserves  little  con- 
sideration from  the  point  of  view  of  our  problem.  Bo- 
livia, Brazil,  Ecuador,  and  Peru  elect  them  all  by  direct 
vote  of  the  holders  of  the  suffrage  and  the  suffrage  is 
generally  manhood  suffrage,  qualified  in  most  cases  by 
the  ability  to  read  and  write.  Argentina  elects  the  Presi- 
dent indirectly,  the  members  of  the  Senate  through  the 
State  Legislatures  and  the  Deputies  by  the  direct  choice 
of  the  voters.  Chili  and  Paraguay  elect  the  President  in- 
directly and  the  members  of  both  legislative  Chambers 
directly.  Colombia  elects  the  President  and  the  Depu- 
ties directly  and  the  members  of  the  Senate  indirectly. 
Uruguay  elects  the  Deputies  directly,  the  Senators  indi- 
rectly, and  the  President  by  vote  of  the  Legislature  in 
joint  session,  while  Venezuela  elects  the  Deputies  by 
the  direct  vote  of  the  holders  of  the  suffrage,  the  Sena- 
tors by  vote  of  the  State  Legislatures,  and  the  President 
by  vote  of  the  two  legislative  Houses  of  the  Union  in 
joint  assembly.  By  a  cursory  review  of  these  brief  state- 
ments, we  may  conclude  that  the  electoral  methods  of 
Argentina,  Uruguay,  and  Venezuela  are  probably  more  fa- 


THE  EFFORT  OF  AMERICA 


337 


vorable  to  governmental  conservatism  and  to  Individual 
Liberty  than  those  of  the  others. 

We  come,  in  conclusion,  to  the  real  test  of  effective 
protection  for  the  Immunities  of  the  Individual  against 
the  power  of  the  Government,  viz. :  the  position  and  power 
of  the  Judiciary.  The  Argentine  state  creates  its  Supreme 
Judicial  Tribunal  by  the  Constitution  and  commands 
through  the  Constitution  that  its  members  shall  be  ap- 
pointed by  the  President  with  the  approval  of  the  Senate, 
shall  hold  their  offices  for  life  or  during  good  behavior, 
shall  be  paid  salaries  fixed  in  the  first  place  by  Statute 
but  undiminishable  thereafter,  and  shall  have  power  to 
determine  all  cases  involving  the  constitutionality  of  acts 
of  the  Legislature  as  well  as  those  of  the  Executive  branch 
of  the  Government.  Brazil  makes  the  same  constitu- 
tional provisions  in  all  these  respects.  Likewise,  Colom- 
bia, which  also  provides  that  when  the  President  vetoes 
a  measure  sent  to  him  from  the  legislative  Chambers  on 
the  claim  that  it  is  unconstitutional,  it  must  be  referred 
to  the  Supreme  Judicial  Tribunal  for  its  opinion,  and  if 
this  Tribunal  pronounces  the  proposed  law  to  be  in  con- 
flict with  the  organic  law,  it  must  be  regarded  as  null  and 
void.  Peru  makes  the  same  constitutional  provisions  upon 
this  subject  as  Argentina  and  Brazil,  except  that  it  re- 
quires the  approval  by  both  Houses  of  the  Legislature  in 
joint  session  of  the  nominations  made  by  the  President 
to  the  Judicial  offices.  Uruguay  makes  similar  constitu- 
tional provisions  upon  the  subject,  only  the  choice  of 
the  Supreme  Judges  in  the  joint  assembly  of  the  two  legis- 
lative Chambers  is  more  in  the  nature  of  an  election  than 
of  an  approval  of  appointment.  Venezuela  must  be  classed 
with  Uruguay  in  its  constitutional  arrangements  concern- 
ing the  Judiciary  in  all  respects  but  one  and  that  is  that 


338  GOVERNMENT  AND  LIBERTY 

this  state  accords  only  a  six  years'  term  to  the  Supreme 
Judges. 

The  other  four  States,  viz.:  Bolivia,  Chili,  Ecuador, 
and  Paraguay,  do  not  vest  through  their  Constitutions 
the  Judicial  Tribunals  with  the  power  to  nullify  legisla- 
tive acts  which  appear  to  them  to  conflict  with  the  con- 
stitutional Immunities  of  the  Individual  against  govern- 
mental power.  All  of  them  except  Chili  subordinate  the 
Judiciary  to  the  Legislature  both  as  to  tenure,  term,  and 
powers.  Chili  gives  the  Judges  by  constitutional  provi- 
sion the  tenure  of  appointment  by  the  President  on  nomi- 
nation by  the  Privy  Council  and  a  life  term. 

If  now  we  review  briefly  all  the  points  of  our  statements, 
we  must  conclude  that,  so  far  as  constitutional  institu- 
tions and  arrangements  are  concerned,  the  six  South 
American  states,  viz.:  Argentina,  Brazil,  Colombia,  Peru, 
Uruguay,  and  Venezuela,  have,  from  the  point  of  view  of 
our  problem  of  the  reconciliation  of  Government  with 
Liberty,  made  some  considerable  advance  over  the  Eu- 
ropean States.  All  of  the  six  have  made  the  declaration 
of  the  Individual  Immunities  against  governmental  power 
a  part,  a  most  important  part,  of  their  constitutional  law, 
and  have  created  the  Judicial  tribunals  by  Constitutional 
law  and  vested  them  with  the  power  to  protect  the  realm 
of  Individual  Immunity  against  encroachment  by  any 
branch  or  all  branches  of  the  Government.  This  has  not 
been  done  by  any  European  state. 

Moreover,  these  six  South  American  states  have  so 
fashioned  their  governmental  machinery,  especially  in  the 
relation  of  its  branches  to  each  other,  as  to  avoid  to  a 
higher  degree  than  in  the  European  states  the  tendency 
to  Autocracy  on  the  one  side  or  Parliamentary  absolutism 
on  the  other.  If  they  appear  to  lag  behind  the  European 


THE  EFFORT  OF  AMERICA  339 

states  in  their  general  political  civilization,  it  must  not 
be  attributed  to  the  theory  of  their  public  law,  but  to  the 
character  of  their  populations.  The  Indian,  the  Negro, 
and  the  Mestizo  form  the  greater  part  of  them  every- 
where, except  in  the  Argentine  Republic.  The  force, 
therefore,  to  work  this  good  machinery  is  what  is  wanting. 
When  we  come,  finally,  to  compare  the  Constitutions  of 
these  six  states  with  each  other,  we  find  that  only  one 
of  them  contains  all  the  factors  for  a  satisfactory  solution 
of  our  problem,  viz. :  the  organized  continuing  sovereignty 
back  of,  separate  from,  and  supreme  over  the  Government, 
the  full  declaration  of  the  constitutional  Immunities  of 
the  Individual  against  all  governmental  power,  the  bal- 
ance of  the  governmental  machinery  in  so  far  as  to  pre- 
vent Autocracy  on  the  one  side  or  Parliamentary  absolu- 
tism on  the  other,  and  the  constitutional  Judiciary,  per- 
manent and  non-political,  and  vested  with  the  power  to 
protect  the  constitutional  Immunities  of  the  Individual 
against  governmental  encroachments  by  any  and  every 
branch  of  the  Government.  That  one  is  the  Argentine 
Republic.  Happily,  this  is  the  very  state  which  contains 
the  population  which  is  capable  of  producing  the  force 
necessary  to  work  to  advantage  this  excellent  machinery 
created  by  its  Constitution.  The  Argentine  Republic  is, 
therefore,  the  light  and  the  hope  of  South  America  in 
the  solution  of  the  world  problem  of  the  reconciliation  of 
Government  with  Liberty. 


CHAPTER  III 

MEXICO  AND   CENTRAL  AMERICA 

ON  account  of  territorial  extent,  population,  proximity 
to  the  United  States  of  North  America,  and  more  elabo- 
rate Constitution,  we  will  consider  Mexico  apart  from  the 
states  of  Central  America.  After  suffering  untold  vicis- 
situdes, subsequent  to  the  attainment  of  her  independence 
from  Spain,  through  internal  unrest  and  unsettled  relations 
to  the  United  States  of  the  North,  Mexico  finally  suc- 
ceeded in  framing  and  adopting,  in  the  year  1857,  a  Con- 
stitution which  contains  all  the  essential  parts  of  a  genuine 
Constitution  from  the  point  of  view  of  our  problem. 

In  the  first  place,  this  Constitution  was  originally  es- 
tablished by  a  National  Constitutional  Convention,  that  is, 
by  a  sovereign  power  organized  separate  from,  indepen- 
dent of,  and  supreme  over,  all  Government,  which  pro- 
vided in  the  Constitution  a  continuing  organization  of  the 
sovereignty  of  the  Nation  for  future  change  in  the  organic 
law.  This  continuing  organization,  however,  while  dis- 
tinguished in  the  mode  of  its  procedure  from  the  ordinary 
operations  of  Government,  is  compounded,  so  to  speak, 
of  the  ordinary  governmental  organs.  Constitutional 
changes  must  be  made  through  initiation  by  the  ordinary 
legislative  department  of  the  General  Government,  the 
Congress,  and  ratified  by  the  Legislatures  of  a  majority 
of  the  States  of  the  Union.  Ordinary  law  is  thus  made 
by  the  separate  acts  of  the  Congress  and  the  Legislature 
of  each  State  of  the  Union  and  constitutional  law  by  the 

340 


THE  EFFORT  OF  AMERICA 


34i 


combined  act  of  the  Congress  and  the  Legislatures  of  a 
majority  of  the  States  of  the  Union.  This  is  sufficient 
to  distinguish  the  one  kind  of  law  from  the  other,  but 
it  does  not  fulfil  the  requirements  of  separate  organi- 
zation of  the  sovereignty  from  the  organs  of  ordinary 
Government  and  of  commanding  power  over  them. 

As  to  the  second  factor  in  the  solution  of  our  problem, 
viz.:  the  domain  of  Individual  Immunity  against  govern- 
mental power,  this  Constitution  is  more  satisfactory.  It 
contains  the  usual  Bill  of  Rights  in  sufficient  fullness. 
It  declares  the  freedom  and  equality  of  all  men,  the  in- 
violability of  property  and  of  the  home,  and  requires  due 
process  of  law  and  the  equal  protection  of  the  law  in 
every  legal  limitation  imposed  upon  the  individual  right 
to  life,  liberty,  and  the  ownership  and  enjoyment  of  prop- 
erty. It  declares  furthermore,  that  there  shall  be  no  con- 
fiscation of  property  by  Government  either  directly  or 
through  unlimited  taxation  or  through  the  exercise  of  the 
power  of  eminent  domain  otherwise  than  for  a  public  pur- 
pose and  with  just  and  adequate  compensation.  It  or- 
dains the  freedom  of  industrial  pursuit,  of  migration,  of 
religion,  of  speech,  of  education,  and  of  the  press,  the 
right  of  peaceable  assembly  and  of  petition  to  the  Govern- 
ment for  redress  of  grievances  and  the  right  of  associa- 
tion for  all  legal  purposes.  It  forbids  torture,  imprison- 
ment for  debt,  and  all  retroactive  law,  and  guarantees  to 
the  people  the  right  to  keep  and  bear  arms  for  their  de- 
fense. In  all  this  the  Mexican  Constitution  is  about  as 
complete  an  instrument  of  public  law  as  exists  anywhere 
to-day. 

When  we  come,  in  the  third  place,  to  consider  the  means 
constructed  by  the  Constitution  for  the  defense  of  this 
realm  of  Individual  Immunity  against  governmental  power, 


342  GOVERNMENT  AND  LIBERTY 

we  have  again  to  concede  the  completeness  in  principle 
of  the  Mexican  instrument.  It  establishes  the  Federal 
system  of  Government.  It  adopts  the  principle  of  the 
separation  of  powers,  both  as  to  tenure  and  procedure. 
The  President  is  elected  indirectly  by  the  voters.  The 
members  of  the  Chamber  of  Deputies  are  elected  directly 
by  the  voters,  and  those  of  the  Senate  indirectly.  The 
President  and  the  Secretaries  of  his  Cabinet,  appointed 
and  removed  by  him  at  pleasure,  are  responsible  for  offi- 
cial crime  and  misdemeanor  only  by  way  of  impeachment 
brought  by  the  Chamber  of  Deputies  and  judged  by  the 
Senate.  The  President  enjoys  with  the  Houses  of  the 
Congress  and  the  Legislatures  of  the  States  of  the  Union 
the  right  to  initiate  bills  in  Congress,  and,  while  the  Presi- 
dent may  veto  any  bill  passed  by  Congress,  his  veto  may 
be  overcome  by  simple  repassage  of  the  measure  by  the 
two  Chambers.  Moreover,  while  the  Chamber  of  Depu- 
ties has  the  privilege  of  considering  first  all  bills  concern- 
ing the  budget  and  the  recruitment  of  the  Army  introduced 
on  its  own  initiative  or  that  of  the  President,  neither 
Chamber  is  accorded  the  power  to  overcome  the  opposi- 
tion of  the  other.  There  is  thus,  in  principle  at  least,  in 
periods  of  peace,  quite  full  provisions  against  Autocracy 
on  the  one  side  and  Parliamentary  Absolutism  on  the 
other.  All  these  constitutional  provisions  relative  to  the 
structure  of  the  Government  certainly  tend  to  restrain 
Government  from  encroaching  upon  the  domain  of  In- 
dividual Immunity. 

Finally,  the  provisions  creating  the  Judiciary  and  vest- 
ing these  tribunals  with  their  vast  powers  in  defense  of 
the  sphere  of  Liberty  place  the  capstone  upon  the  struc- 
ture from  the  point  of  view  of  our  problem.  The  mem- 
bers of  the  Supreme  Court  are  made  entirely  independent 


THE  EFFORT  OF  AMERICA  343 

of  the  other  branches  of  the  Government  in  the  origin 
of  their  tenure.  They  are  elected  indirectly  by  the  voters. 
But  it  must  be  conceded  that  they  are  not  made  suffi- 
ciently independent  of  the  voters.  Their  terms  are  only 
for  six  years.  Their  salaries,  once  fixed  by  Congress,  can- 
not be  reduced,  but  they  are  subject  to  impeachment  for 
crime  and  misdemeanor  in  office.  The  Judicial  tribunals 
are,  however,  vested  by  the  Constitution  with  the  power 
to  declare  any  act  of  the  central  Government  or  of  the 
States  of  the  Union,  whether  executive  or  legislative,  null 
and  void  which,  in  their  opinion,  conflicts  with  the  con- 
stitutional Immunities  of  the  Individual,  or  any  act  of  the 
central  Government  which,  in  their  opinion,  conflicts  with 
the  constitutional  powers  of  the  States  of  the  Union,  or 
any  act  of  a  State  of  the  Union  which,  in  their  opinion, 
conflicts  with  the  constitutional  powers  of  the  central 
Government.  This  is  all  full  and  explicit  and  it  would 
seem  to  cover  most  of  the  points  required  in  the  solution 
of  our  problem. 

Briefly  surveying,  now,  all  that  has  been  presented,  we 
must  concede  that,  while  this  Constitution  is  defective  in 
regard  to  the  first  requirement  for  the  successful  solution 
of  our  problem,  viz.:  the  requirement  of  a  continuing 
organization  of  the  sovereign  power  separate  from,  and 
supreme  over,  the  Government,  a  requirement  seldom,  if 
ever,  in  the  course  of  our  review  satisfactorily  met,  it  con- 
tains, on  the  contrary,  the  other  necessary  provisions  in 
some  considerable  degree  of  perfection. 

Why,  then,  we  naturally  ask,  with  this  well-thought- 
out,  well-balanced,  and  well-constructed  instrument  of  her 
public  law  is  Mexico  the  scene  of  so  much  despotism  at 
one  time  and  anarchy  at  another  or  so  much  despotism 
in  one  place  and  at  the  same  time  so  much  anarchy  in 


344  GOVERNMENT  AND  LIBERTY 

another?  Some  of  the  publicists  have  pointed  to  the  fact 
that  the  Government  is  expressly  empowered  by  the  Con- 
stitution to  suspend  all  these  declarations  and  guarantees 
of  Liberty  during  war,  insurrection,  and  public  danger. 
But  in  every  political  system,  constitutional  or  not,  this 
is  either  expressed  or  understood.  It  is  quite  possible 
that  when  this  power  of  suspension  is  expressed,  the 
Government  may  be  more  ready,  if  not  more  hasty,  in 
making  use  of  it  than  when  it  is  understood.  There 
would  seem  to  be  a  more  serious  responsibility  connected 
with  the  use  of  an  implied  power  than  with  the  use  of  an 
expressed  power.  At  least,  it  is  probable  that  most  men 
would  so  feel  it. 

But  I  cannot  consider  a  so  relatively  unimportant  dis- 
tinction as  this  to  be  the  chief  cause  of  the  poor  success 
of  Mexico  in  working  out  her  political  civilization  under 
such  an  excellent  instrument  of  public  law.  I  consider 
that  the  explanation  of  this  misfit  is  to  be  attributed 
almost  wholly  to  the  character  of  the  people  and  to  the 
manner  in  which  the  Mexican  state  was  originally  con- 
structed. The  ethnologists  calculate  that  not  over  twenty 
per  cent  of  the  population  belong  to  the  white  race,  while 
eighty  per  cent  at  least  are  Indian  and  mixed,  in  nearly 
equal  numbers.  Connect  with  this  ethnological  condition 
the  fact  that  the  Mexican  state  was  originally  constructed 
by  the  imposition,  through  military  force,  of  the  sovereignty 
of  the  white  race  upon  the  Indian  race  and  that  the  domi- 
nation of  the  white  race  has  been  legitimized  by  the  moral 
and  religious  power  of  the  Roman  Christian  Church,  and 
you  have,  it  seems  to  me,  the  clew  to  the  explanation. 
The  system  of  a  democratic  Republic  is  not  fitted  for  such 
a  situation,  or,  rather,  such  a  situation  is  not  adjustable  to 
a  democratic  Republic.  The  amalgamation  of  the  white 


THE  EFFORT  OF  AMERICA  345 

man  and  the  Indian  has  produced  a  mixed  race  of  consid- 
erable intellectual  as  well  as  physical  strength.  The  strug- 
gle of  this  mixed  race  to  throw  off  the  sovereignty  of  the 
white  man,  on  the  one  side,  and  to  dominate  the  pure 
Indian,  on  the  other,  has  made  Mexico  a  land  of  revolutions 
and  rebellions  and  has  kept  it  oscillating  between  autocracy 
and  anarchy.  It  will  still  be  decades,  perhaps  centuries, 
before  its  population  can  develop  that  necessary  consen- 
sus of  opinion  concerning  rights  and  wrongs  and  that  nec- 
essary steadiness  in  upholding  the  same  which  are  funda- 
mentally essential  to  the  successful  operation  of  that  excel- 
lent Constitution  under  which  Mexico  only  nominally  lives. 

The  six  states  of  Central  America,  viz.:  Costa  Rica, 
Guatemala,  Honduras,  Nicaragua,  Panama,  and  Salvador, 
while  offering  some  peculiarities  when  contrasted  with  the 
other  American  states,  have  less  to  contribute  to  the  solu- 
tion of  our  problem.  All  of  them  except  the  parvenu 
state  of  Panama  were,  before  1839,  members  of  the  Con- 
federation of  Central  America,  and  the  Constitutions  of 
most  of  them  make  provision  for,  or  at  least  mention  of, 
a  return  to  that  condition  or  perhaps  to  the  condition  of 
a  more  perfect  Union. 

All  of  them,  having  been  brought  into  existence  by  pop- 
ular revolution,  present  Constitutions  originally  framed 
and  adopted  by  Constituent  Conventions  separate  from, 
and  supreme  over,  any  Government.  In  this  respect, 
therefore,  they  all  fulfil  one  requirement  for  the  solution 
of  our  problem.  In  the  constitutional  provision  for  sub- 
sequent change  of  the  organic  law  all  of  them,  except 
only  Panama,  require  the  formation  of,  and  action  by,  a 
Constituent  Assembly.  Panama  allows  constitutional 
amendment  by  vote  of  two  Legislatures,  the  latter  by  a  two- 
thirds  majority  of  its  members.  In  all  cases,  however,  it  is 


346  GOVERNMENT  AND  LIBERTY 

the  ordinary  Legislature  which  initiates  the  change  ac- 
cording to  its  own  discretion.  All  fall  short,  therefore, 
of  satisfying  the  requirements  of  a  continuing  sovereign 
organized  separate  from,  and  commanding  over,  the 
Government. 

On  the  other  hand,  every  one  of  them  has  provided  by 
constitutional  law  a  realm  of  Individual  Immunity  against 
governmental  power  fairly  well  denned  and  delimited, 
containing  the  usual  declarations  of  equality  before  the 
law,  of  freedom  from  arbitrary  arrest  and  detention,  of 
inviolability  of  property,  of  forbiddance  of  confiscation 
by  limitation  upon  taxation  and  upon  the  exercise  of  emi- 
nent domain,  of  freedom  of  religion,  of  speech,  and  the 
press,  of  the  right  of  assembly  and  petition  to  Govern- 
ment and  of  association  for  all  legal  purposes,  and  re- 
quiring that  every  act  of  Government  touching  this  realm 
at  any  point  shall  follow  due  process  of  law  constitution- 
ally ascertained.  It  must  be  conceded  that  even  these 
insignificant  states  have,  as  almost  all  the  other  states 
of  the  modern  world,  fairly  well  stated  in  their  Constitu- 
tions the  elements  of  Individual  Liberty  and  Immunity 
against  the  powers  of  Government. 

But  when  we  come  to  the  crucial  test,  to  the  inquiry 
for  the  means  provided  for  protecting  these  Immunities 
against  attempted  encroachment  by  Government,  we  find 
the  most  of  them  lamentably  lacking.  This  is  not  ap- 
parent in  the  relation  of  the  Legislature  to  the  Executive. 
The  Constitutions  of  all  of  these  states  contain  the  prin- 
ciple of  the  separation  of  powers  and  the  independence, 
under  co-ordination,  of  the  departments  of  Government. 
The  President  is  in  every  case  but  one,  Costa  Rica,  elected 
directly  by  the  voters.  In  Costa  Rica  he  is  elected  indi- 
rectly. The  same  voters  elect  the  members  of  the  Legis- 


THE  EFFORT  OF  AMERICA  347 

lature.  The  President  and  his  Ministers  are  responsible 
for  crimes  and  misdemeanors  in  office.  They  may  be 
impeached  by  the  Legislature,  and  since,  as  we  shall  see, 
the  Legislatures  of  all  these  states  are  unicameral,  they 
are  judged  in  every  case  but  one  by  a  Judicial  tribunal. 
The  exception  is  the  case  of  Panama,  whose  Constitution 
provides  that  the  Legislative  body  may  try  upon  its  own 
accusation.  The  President  has  also  the  power  both  of 
initiating  and  vetoing  measures.  The  legislative  Chamber 
may,  in  all  cases,  reject  his  propositions  and  may  over- 
come his  veto  by  repassage  of  any  vetoed  measure  by 
a  majority  of  two-thirds  of  the  members.  Thus  far  the 
principle  of  these  Constitutions  as  to  the  structure  of  the 
government  is  the  check-and-balance  system. 

When,  however,  we  come  to  the  structure  of  the  Legis- 
lature, we  find,  as  above  indicated,  that  the  unicameral 
system  prevails  exclusively.  The  want  of  a  twofold  con- 
sideration for  every  project  of  law  is,  of  course,  generally 
unfavorable  to  the  maintenance  of  the  balance  between 
Government  and  Liberty,  especially  when,  in  some  cases, 
the  President  has  no  veto  at  all  upon  the  budget  bill. 
The  radicalness  of  this  legislative  structure  is,  it  is  true, 
in  some  instances,  as  in  the  case  of  Nicaragua,  somewhat 
modified  by  the  length  of  term  of  the  members  of  the 
legislative  Chamber  and  by  the  gradual  change  of  mem- 
bership in  that  body,  the  term  being,  in  this  case,  for  six 
years  and  the  change  by  thirds. 

It  is,  however,  when  tried  by  the  most  crucial  test  that 
we  find  the  Constitutions  of  these  states  most  lacking 
from  the  point  of  view  of  our  problem.  The  Courts  are 
composed  of  Judges  chosen  in  every  case,  except  that  of 
Panama,  either  by  the  voters  or  the  Legislature,  generally 
by  the  Legislature.  Moreover,  the  terms  exceed  in  no 


348  GOVERNMENT  AND  LIBERTY 

case  six  years,  generally  not  more  than  four  years.  They 
are  thus  not  protected  against  the  Legislature  in  the  main- 
tenance of  Judicial  independence. 

Finally,  in  no  case,  except  that  of  Nicaragua  and  that 
of  Panama,  are  the  Judicial  tribunals  authorized  to  nullify 
a  legislative  act,  which  in  their  opinion  conflicts  with  the 
constitutional  Immunities  of  the  Individual.  The  Con- 
stitution of  Nicaragua  vests  this  power  in  the  Courts 
whenever  the  question  may  judicially  arise,  and  the  Con- 
stitution of  Panama  requires  that,  when  the  President 
vetoes  any  bill  sent  to  him  by  the  Legislature  on  the 
ground  of  its  unconstitutionality  as  alleged  by  him,  the 
measure  shall  be  submitted  to  the  Supreme  Judicial  body 
for  its  opinion,  and  that,  if  this  body  sustains  the  Presi- 
dent's contention,  the  bill  shall  fail. 

But  while  the  constitutional  institutions  and  methods 
of  these  states  leave  much  to  be  desired  from  the  point 
of  view  of  our  problem,  it  is  not  this  which  presents  the 
main  failing.  It  is  again,  as  in  South  America  and  Mex- 
ico, the  character  of  the  population — I  will  not  say  people, 
because  this  word  denotes  a  population  further  advanced 
in  political  civilization  than  exists  in  any  of  them.  All 
six  of  them  contain  a  population  of  less  than  six  millions 
of  persons,  of  whom  ninety  per  cent  at  least  are  Indians, 
Negroes,  and  Mestizos.  Constant  revolutions  and  rebel- 
lions and  constant  interference  by  foreign  powers  render 
it  impossible  for  these  miniature  states  to  contribute  any- 
thing to  the  solution  of  our  problem.  Their  Constitu- 
tions were  given  them  by  the  handful  of  white  men  who 
dominate  in  each,  and,  while  from  a  theoretical  point  of 
view  these  instruments  are  not  without  considerable  merit, 
yet  they  give  us  no  test  of  the  character  of  the  great  mass 
of  the  population  and  they  are  misfits  in  every  case. 


CHAPTER  IV 

THE   STATES   OF   THE  WEST  INDIAN  ARCHIPELAGO 

COMING  finally  to  the  three  states  of  the  West  Indian 
Archipelago,  Cuba,  Hayti,  and  Santo  Domingo,  we  find 
some  advance  over  those  whose  constitutional  and  political 
conditions  we  have  just  considered.  But  this  advance 
is  chiefly  in  the  instruments  of  constitutional  law  which 
have  been  made  for  them  directly  or  indirectly  by  outside 
forces. 

Of  the  three,  naturally  the  Constitution  of  Cuba  is  the 
most  perfect  and  gives  more  satisfactory  answers  to  the 
requirements  of  our  problem. 

In  the  first  place,  this  Constitution  was  framed  and 
adopted  by  a  Constituent  Assembly  separate  from,  and 
supreme  over,  any  part  and  all  parts  of  the  Government. 

In  the  second  place,  the  sovereign  power  for  changing 
the  organic  law,  as  provided  in  the  Constitution,  is  like- 
wise in  its  organization  separate  from,  and  supreme  over, 
the  Government.  It  is  a  Constituent  Convention.  But 
this  Convention  must  be  called  by  a  governmental  act 
and  it  has  no  power  to  initiate  a  constitutional  change. 
This  power  belongs  solely  to  the  ordinary  Legislature  by 
a  two-thirds  vote  in  each  Chamber. 

In  the  third  place,  the  Cuban  Constitution  contains 
the  declaration,  in  full  measure,  of  the  Immunities  of  the 
Individual  against  the  powers  of  Government.  These 
have  been  so  often  mentioned  in  detail  that  they  do  not 
need  to  be  repeated  here. 

349 


350  GOVERNMENT  AND  LIBERTY 

In  the  fourth  place,  the  construction  of  the  Govern- 
ment on  the  check-and-balance  principle,  the  universal 
American  principle,  furnishes  a  certain  probable  protec- 
tion of  this  domain  of  Individual  Immunity  against  gov- 
ernmental encroachment.  The  President  is  chosen  by  the 
voters  through  electors  for  a  term  of  four  years.  He  ap- 
points and  dismisses  at  pleasure  the  members  of  his  Cabi- 
net. He  and  they  are  subject  to  impeachment  instituted 
by  the  Chamber  of  Deputies  and  tried  by  the  Senate.  He 
has  no  power  to  initiate  law  save  by  way  of  a  message  to 
Congress,  except  in  proposing  the  budget,  but  he  can  veto 
bills  passed  by  the  two  Houses  of  the  Legislature  and  this 
veto  can  be  overcome  only  by  a  two-thirds  vote  in  each 
House.  The  Legislature  consists  of  two  Chambers,  the 
members  of  one  elected  directly  by  the  voters,  changing 
totally,  and  having  a  term  of  four  years,  the  members  of 
the  other  elected  by  the  Councillors  of  each  province  in 
assembly  with  an  equal  number  of  adjuncts  chosen  by  the 
voters,  changing  by  halves,  and  having  a  term  of  eight 
years,  and  each  Chamber  having  equal  power  in  the  in- 
itiation and  enactment  of  law. 

Finally,  the  Constitution  provides  for  a  Judiciary  in 
which  the  Judges  of  the  Supreme  Court  shall  be  appointed 
by  the  President,  by  and  with  the  consent  of  the  Senate, 
with  life  terms,  and  an  irreducible  salary,  and  vests  in 
this  supreme  tribunal  the  power  to  nullify  legislative  acts 
as  well  as  executive  acts  when  coming  into  conflict  with 
the  Constitution,  especially  those  provisions  of  it  which 
protect  the  constitutional  Immunities  of  the  Individual 
against  the  encroachments  of  governmental  power. 

The  independence  of  Cuba  and  this  Constitution  are 
virtually  under  the  protectorate  of  the  United  States  of 
North  America,  not  only  against  foreign  aggression,  but 


THE  EFFORT  OF  AMERICA  351 

against  the  Cubans  themselves.  It  is,  therefore,  not  ex- 
actly correct  to  denominate  Cuba  a  sovereign  state.  Its 
geographical  and  strategic  position  across  the  entrance  to 
the  Gulf  of  Mexico  makes  it  necessary  that  its  relation 
to  foreign  powers  especially  should  be  under  the  control, 
in  greater  or  less  degree,  of  the  United  States. 

When  compared  with  this  Constitution,  created  in  close 
imitation  of  that  of  the  United  States,  the  Constitutions 
of  the  other  West  Indian  states  appear  quite  faulty.  They 
are  two  in  number  and  occupy  the  island  just  east  of  Cuba 
in  unequal  parts,  the  territory  of  the  state  of  Hayti  amount- 
ing to  some  ten  thousand  square  miles  and  that  of  Santo 
Domingo  to  some  twenty  thousand. 

The  Haitian  Constitution  of  1887  manifests  the  influ- 
ence of  the  present  French  instrument.  It  was  created 
by  a  Constituent  Convention  separate  from,  and  supreme 
over,  the  Government;  but  the  amendment  of  the  same 
is  effected  by  means  of  a  proposition  passed  in  the  ordi- 
nary way  for  enacting  Statutes  by  the  ordinary  legisla- 
tive Houses  and  approved  by  the  two  Houses  in  joint 
assembly  elected  immediately  after  the  passage  of  the 
proposition.  The  distinction,  thus,  between  the  sov- 
ereign power  and  the  legislative  branch  of  the  Govern- 
ment is,  as  to  the  membership  of  each,  entirely  lacking. 
Nor  is  the  method  of  procedure  entirely  distinct,  the  orig- 
ination of  the  proposition  following  the  method  of  enact- 
ing ordinary  Statute  law. 

This  Constitution  contains,  however,  a  very  complete 
Bill  of  Rights  or  Immunities,  in  which  all  of  the  usual 
points  are  fully  elaborated,  and  which  need  not  be  cited 
here  in  detail,  since  they  have  been  so  often  enumerated. 

It  is,  as  usual,  when  we  come  to  consider  the  means 
provided  for  the  protection  and  maintenance  of  these  Im- 


352  GOVERNMENT  AND  LIBERTY 

munities  that  we  find  the  least  assistance  in  the  satisfac- 
tory solution  of  our  problem. 

Regarding,  first,  the  construction  of  the  Haitian  Gov- 
ernment and  the  relation  of  its  parts,  we  find  that  the 
Executive,  the  President,  derives  his  tenure  from  the 
Legislature,  which  in  joint  assembly  of  the  two  Houses 
elects  him  by  a  two-thirds  majority  vote,  and  that  he 
with  his  Secretaries  of  the  administrative  departments  is 
responsible  to  the  Legislature  by  way  of  impeachment 
initiated  by  the  Lower  Chamber  and  tried  by  the  Senate. 
He  is  vested  with  the  power  both  of  initiating  bills  and 
of  vetoing  the  acts  of  the  Chambers,  and,  for  defending 
the  bills  which  he  may  initiate  and  also  his  vetoes,  he 
may  send  his  Secretaries  into  the  Chambers  and  demand 
that  they  be  heard,  but  his  veto  may  be  overcome  by  a 
two-thirds  majority  vote  in  each  Chamber.  Moreover, 
while  the  Legislature  is  constructed  on  the  bicameral 
principle  and  the  two  Houses  have  parity  of  powers  in 
legislation,  except  that  the  financial  measures  must  either 
originate  in  or  be  considered  first  by  the  Lower  House, 
the  Commons,  the  members  of  the  Senate  are  chosen  by 
the  Lower  House,  which  exercises  thus  an  indirect  control 
over  the  acts  of  the  Upper  House. 

Finally,  while  the  High  Courts  are  created  by  the  Con- 
stitution and  the  Judges  of  these  Courts  are  appointed  by 
the  President  and  hold  during  good  behavior,  i.  e.,  for 
life,  and  enjoy  salaries  fixed  by  law  and  have  the  power 
of  refusing  to  apply  any  unconstitutional  act,  the  Con- 
stitution expressly  declares  that  the  final  authoritative 
interpretation  of  all  law  belongs  to  the  Legislature  alone. 

Thus  neither  in  the  check-and-balance  system  of  the 
two  political  branches  of  the  Government  nor  in  the 
powers  of  the  non-political  branch,  the  Judiciary,  do  we 


THE  EFFORT  OF  AMERICA  353 

find  any  sufficient  defense  of  the  pompous  declaration  of 
Rights  and  Immunities  against  the  encroachments  of  gov- 
ernmental power. 

The  Constitution,  lastly,  of  Santo  Domingo  is  even  less 
satisfactory  in  the  answer  it  gives  to  the  queries  of  our 
problem. 

It  was,  it  is  true,  originally  formed  and  adopted  by  a 
Constituent  Convention  entirely  separate  from,  and  su- 
preme over,  the  governmental  organs  and  the  powers  con- 
ferred by  it  upon  them;  but  the  sovereign  power  as  or- 
ganized by  and  in  the  Constitution  for  all  subsequent 
changes  of  the  organic  law  is  confounded  with  the  Legis- 
lature. It  is  simply  the  Legislature  acting  by  a  two- thirds 
majority  vote. 

On  the  other  hand,  the  Constitution  contains  a  com- 
plete declaration  of  Rights  and  Immunities  for  the  Indi- 
vidual against  governmental  power,  the  details  of  which 
I  will  again  pass  over  since  they  have  been  so  often  re- 
cited in  the  course  of  this  work. 

The  construction  of  the  Government  is  probably  more 
favorable  to  the  protection  of  this  realm  of  Individual 
Immunity  against  its  own  encroachments  upon  it  than 
in  the  case  just  preceding,  the  case  of  Hayti.  In  the 
first  place,  the  Executive,  the  President,  does  not  derive 
his  tenure  from  the  Legislature,  as  the  Haitian  President 
does,  but  is  elected  by  electors  chosen  by  the  voters  for 
this  purpose,  and  has  a  long  term,  six  years.  His  respon- 
sibility, with  that  of  his  Secretaries  of  State,  is  enforced 
by  arraignment  before,  and  trial  by,  the  Supreme  Judicial 
body.  He  also  has  the  power  of  initiating  bills  and  of 
vetoing  bills  passed  by  the  two  Chambers,  which  veto  can 
be  overcome  only  by  a  two-thirds  majority  vote  in  each 


354  GOVERNMENT  AND  LIBERTY 

House  of  the  Legislature.  This  is  a  much  more  inde- 
pendent position  than  that  occupied  by  the  Haitian  Presi- 
dent, and  enables  him  to  check  much  more  successfully 
the  movements  of  the  Legislature  toward  Parliamentary 
absolutism.  The  Legislature  is  composed  of  two  Houses 
and  the  principle  of  the  bicameral  system  is  further  main- 
tained by  according  substantial  parity  of  powers  to  the 
two  Chambers,  both  in  the  initiation  and  passage  of  proj- 
ects of  law. 

The  protection  offered  by  the  construction  of  the  po- 
litical departments  of  the  Government,  the  Legislature, 
and  the  Executive,  to  Individual  Liberty  is  only  a  prob- 
able one  at  the  best,  and  depends  upon  the  wisdom  and 
moderation  of  these  bodies  instead  of  upon  any  consti- 
tutional restrictions. 

The  position  and  powers  of  the  Judiciary  furnish,  as 
we  all  know,  the  real  test;  and  in  this  respect  the  Domin- 
ican Constitution  is  greatly  lacking  from  the  point  of  view 
of  our  problem.  The  Judges  of  the  Supreme  Court  are 
elected  by  the  Legislature,  hold  for  a  very  short  term, 
four  years,  and  the  Court  is  not  clearly  vested  with  any 
power  to  protect  the  constitutional  Immunities  of  the  In- 
dividual against  governmental  encroachment.  The  Consti- 
tution, it  is  true,  forbids  the  enactment  of  any  law  in  conflict 
with  its  own  provisions  and  vests  the  Supreme  Court  with 
the  power  to  determine  which  law  governs  a  case  when  more 
than  one  law  appears  to  be  involved  in  it.  A  determined 
Court  sustained  by  a  judicially  minded  people  might  make 
out  of  this  the  power  of  the  Court  to  determine  the  con- 
stitutionality of  legislative  acts  and  nullify  such  as,  in  its 
opinion,  conflict  with  the  provisions  of  the  Constitution, 
but  such  a  Court  and  such  a  people  do  not  exist  in  the 
state  of  Santo  Domingo. 


THE  EFFORT  OF  AMERICA  355 

We  must,  therefore,  turn  away  with  disappointment 
from  the  consideration  of  this  state,  not  so  great  indeed 
as  in  many  other  cases,  since  we  did  not  expect  to  ob- 
tain much  help  from  it  in  the  solution  of  our  problem. 
It  presents  neither  stable  Government  nor  protected 
Liberty. 

When,  now,  we  compare  the  Constitutions  of  South  and 
Central  America,  Mexico,  and  the  West  Indian  Archipel- 
ago with  those  of  the  European  states,  we  must  concede 
from  the  point  of  view  of  our  problem  that  they  are  more 
complete  and  contain  fuller  and  more  satisfactory  answers 
to  our  inquiries.  They  were  all  drafted  by  Spanish  or 
Portuguese  scholars  and  based  by  them  upon  the  political 
philosophy  of  the  French  Revolution.  They  are  almost 
all  of  them  excellent  instruments  from  a  theoretical  or 
philosophical  standpoint.  Why,  then,  are  the  results  of 
the  efforts  to  apply  them  so  unsatisfactory?  Why  is  the 
history  of  these  states  in  so  great  measure  the  record 
of  alternations  between  anarchy  and  despotism  instead  of 
steady  progress  in  the  reconciliation  of  Government  and 
Liberty?  We  must  look  to  the  character  of  the  popula- 
tion— I  will  not  say  " people" — of  each  of  them  for  the 
explanation. 

We  are  in  the  habit  of  calling  these  populations  Latin- 
Americans  and  of  attributing  to  them  the  political  psy- 
chology of  the  Latin  races  of  Europe.  But  with  the  ex- 
ception of  the  inhabitants  of  Argentina,  Chili,  Cuba,  and 
Uruguay  there  is  not  a  predominant  Latin  population  in 
all  the  Americas  south  of  the  United  States  of  North 
America,  and  the  inhabitants  of  Chili,  Cuba,  and  Uru- 
guay can  be  termed  such  only  when  we  concede  that  the 
Spaniards  and  Spanish  Creoles  are  Latins,  which  is  not 
now  generally  acknowledged  by  the  ethnologists. 


356  GOVERNMENT  AND  LIBERTY 

Brazil  has  a  population  of  24,000,000,  not  20  per  cent  of 
which  belong  to  the  white  race.  Full  80  per  cent  are  In- 
dians, Negroes,  and  Mestizos.  Bolivia  has  a  population 
of  some  2,000,000,  of  which  hardly  12  per  cent  are  white. 
The  rest  are  Indians  and  Mestizos.  Colombia  has  a  pop- 
ulation of  about  6,000,000,  not  20  per  cent  of  which  are 
white.  The  rest  are  Indians  and  Mestizos.  Ecuador  con- 
tains about  1,250,000  inhabitants,  almost  all  of  whom  are 
Indians  and  Mestizos.  Paraguay  has  less  than  1,000,000 
inhabitants,  nine-tenths  of  whom  are  Indians,  Negroes, 
and  Mestizos.  Peru  with  some  3,000,000  inhabitants  has 
probably  10  per  cent  of  whites.  Venezuela  with  about 
the  same  population  as  Peru  is  in  about  the  same  condi- 
tion ethnologically.  The  six  Central  American  states 
covering  something  over  200,000  square  miles  of  terri- 
tory, inhabited  by  less  than  6,000,000  persons,  contain,  in 
no  case,  a  white  population  of  over  20  per  cent  of  the 
whole.  The  same  is  true  of  Mexico.  While  of  the  three 
West  Indian  states  inhabited  by  something  over  5,000,000 
persons,  Cuba  alone  has  any  claim  to  be  classed  as  Latin 
in  its  population. 

From  this  brief  survey  of  the  statistics  of  population 
we  see  easily  that  of  the  twenty  countries  with  which  we 
are  dealing  only  four  can  with  any  degree  of  accuracy  be 
classed  as  Latin  in  population.  It  cannot  even  be  claimed 
that  the  small  ruling  class  in  the  others  is  composed,  in 
every  case,  of  Latins,  even  if,  as  I  have  said  before,  we 
class  the  Spaniards  as  Latins. 

In  fact,  we  have  to  do  here  with  Indian  populations, 
living  under  white-man  Constitutions,  which  they  do  not 
understand,  much  less  appreciate.  These  Indian  popula- 
tions are  not  fitted  as  yet  for  Constitutions  which  rest 
upon  the  principles  of  national  consensus  and  individual 


THE  EFFORT  OF  AMERICA  357 

worth.  Tribal  organization  and  communism  of  goods 
were  the  main  elements  of  the  life — I  will  not  say  "civil- 
ization"— natural  to  them. 

They  never  have  been  satisfied  and  are  not  now  satis- 
fied with  the  system  imposed  upon  them  by  the  Euro- 
peans. They  do  not  seem  to  be  able  to  rise  to  the  enjoy- 
ment of  its  advantages.  They  feel  oppressed  by  its  op- 
portunities, of  which  they  can  make  little  use.  The  very 
Liberties  guaranteed  to  them  by  these  Constitutions  ap- 
pear only  to  give  the  intelligent,  not  to  say  crafty,  the 
means  for  overreaching  them.  A  benevolent  despotism 
would  best  fit  their  situation  and  stage  of  development. 
A  democratic  Republic  with  such  populations  is  a  wicked 
farce.  It  is  dispiriting  to  feel  that  any  human  beings  are 
incapable  of  civilization.  We  ought  not  to  give  way  to 
such  pessimism,  but  should  keep  on  striving  with  our 
means  of  education  and  example  for  their  uplift.  Never- 
theless we  must  be  patient  with  much  that  is  dishearten- 
ing and  remember  that  many  centuries  of  effort  and  de- 
velopment were  necessary  to  bring  the  white  man  up  to 
his  still  imperfect  civilization.  These  excellent  Constitu- 
tions may  seem  to  us  to  be  chiefly  waste  paper,  but  they 
are  not.  They  are  a  great  object-lesson.  They  are  a 
great  rally  ing-point.  They  show  men  where  at  last  the 
political  pendulum,  swinging  between  the  extremes  of 
despotism  and  anarchy,  will  finally  come  to  rest.  With 
one  real  state  in  South  America,  Argentina,  and  one  real 
state  in  North  America,  the  future  of  all  the  Americas  is 
never  to  be  despaired  of. 


CHAPTER  V 

THE  NEW  UNITED  STATES  OF  NORTH  AMERICA 

THE  solution  presented  by  the  Constitution  of  the 
United  States  of  North  America  to  the  great  problem 
of  this  study  was,  as  we  know,  the  solution  as  it  stood 
at  the  beginning  of  the  year  1898.  As  we  have  seen, 
the  Civil  War  of  1861-5  had,  through  the  Thirteenth  and 
Fourteenth  Amendments  to  the  Constitution  produced  by 
it,  added  to  the  Immunities  of  the  Individual  against  the 
powers  of  Government,  and  the  balance  between  Govern- 
ment and  Liberty  as  thus  regulated  seemed  to  be  fairly 
struck.  We  seemed  to  have  found  the  solution  in  principle 
of  the  great  problem  of  political  civilization  and  to  be  en- 
gaged now  with  the  work  of  its  application  to  details.  But 
with  the  year  1898  came  a  turn  in  affairs,  which  has  changed 
materially,  if  not  completely,  the  course  of  our  develop- 
ment. 

The  influences  under  which  we  now  came  were  those 
springing  out  of  the  experiences  of  a  war  of  conquest. 
It  is  hardly  credible  that  this  Government  went  into  the 
Spanish  War  of  1898  with  any  conscious  purpose  of  con- 
quest. It  is  practically  certain  that  President  McKinley 
entertained  no  such  thought.  But  it  is  the  natural  re- 
sult of  victory  in  foreign  war  that  the  victor  must  take 
his  indemnity,  in  part  at  least,  in  territory.  The  Spanish- 
American  War  of  1898  was  no  exception  to  the  rule,  and 

358 


THE  EFFORT  OF  AMERICA  359 

we  came  out  of  it  saddled  with  Porto  Rico  and  the  Phil- 
ippines and  with  obligations  in  regard  to  Cuba,  all  of 
which  have  cost  us  not  only  blood  and  treasure,  but  have 
led  or  misled  us  into  new  paths  of  development  whose 
termini  have  not  yet  been  reached — in  fact,  not  yet  dis- 
covered. 

Territorial  expansion  was  no  new  thing  for  these  United 
States  at  the  beginning  of  the  last  decade  of  the  last  cen- 
tury. From  the  beginning  of  the  nineteenth  century  on- 
ward our  history  had  been  one  of  expansion,  but  it  was 
expansion  upon  this  Continent,  generally  from  East  to 
West,  and  the  newly  acquired  territory  was  quickly  set- 
tled by  our  own  blood  and  race  relatives  from  the  East. 

The  Constitution  provided  a  way  to  govern  the  people 
occupying  such  territory  and  for  granting  to  them  at  the 
proper  time  the  powers  of  a  State  of  the  Union.  These 
constitutional  provisions  were,  it  is  true,  a  little  ambigu- 
ous. They  read:  "Congress  shall  have  power  to  dispose 
of,  and  make  all  needful  rules  and  regulations  respecting, 
the  territory  or  other  property  belonging  to  the  United 
States,"  and  "New  States  may  be  admitted  by  the  Con- 
gress into  this  Union."  These  provisions  are  to  be  found 
in  Article  IV  of  the  Constitution,  not  in  Article  I,  which 
contains  the  clauses  respecting  the  organization  and  powers 
of  Congress.  This  fact  also  tended  to  make  the  meaning 
of  these  provisions  obscure.  Nevertheless  Judicial  deci- 
sion and  practise  had,  before  the  middle  of  the  nineteenth 
century,  substantially  settled  by  interpretation  the  main 
points  of  these  provisions.  Under  these  interpretations 
it  was  settled  as  constitutional  law  that  when  by  treaty, 
conquest,  or  any  other  method  of  acquisition,  territory 
was  taken  by  the  United  States  Government  for  the 
United  States,  such  territory  was  at  first  governed  by 


360  GOVERNMENT  AND  LIBERTY 

the  President,  as  Commander-in- Chief  of  the  military 
power,  until  Congress  should  establish  Civil  Government 
therein,  but  that  the  Government  by  the  President,  in  so 
far  as  martial  law  was  not  made  necessary  by  a  state  of 
war  or  rebellion  therein,  and  the  Civil  Government  estab- 
lished therein  by  Congress,  were  both  under  the  limita- 
tions imposed  by  the  Constitution  upon  all  Government 
in  behalf  of  the  Private  Rights  of  the  Individual  and  his 
Immunity  against  all  governmental  power;  and  that  the 
automatic  effect  of  Congress  admitting  any  part  of  such 
territory  into  the  Union  as  a  State  was  the  still  further 
limitation  of  the  powers  of  the  United  States  Government 
or  any  branch  thereof  over  the  inhabitants  of  such  terri- 
tory by  authorizing  them  to  assume  that  part  of  the 
whole  governmental  power  ascribed  by  the  Constitution 
to  a  State  of  the  Union. 

The  famous  Dred  Scott  decision  of  the  year  1857  ap- 
peared to  limit  even  further  than  this  the  powers  of  Con- 
gress in  the  Government  of  the  Territories  of  the  Union, 
denying  to  Congress  the  full  powers  of  Government  under 
the  limitations  only  of  the  constitutional  Immunities  of 
the  Individual,  and  restricting  it  to  the  powers  absolutely 
necessary  for  holding  them  as  the  property  of  the  United 
States.  After  the  Civil  War  and  the  constitutional  changes 
in  behalf  of  Individual  Liberty  resulting  from  it,  the  old 
doctrine  was  re-established,  recognizing  to  Congress  the 
general  powers  of  Government  in  the  Territories  limited 
only  by  the  constitutional  provisions  defining  and  guaran- 
teeing the  fundamentals  of  Individual  Liberty. 

These  principles  remained  unquestioned  down  to  the 
close  of  the  War  with  Spain  of  1898,  when  the  acquisi- 
tion of  Porto  Rico  and  the  Philippines  and  the  annexation 
of  the  Hawaiian  Islands,  that  is,  of  territory  separated 


THE  EFFORT  OF  AMERICA  361 

by  broad  bodies  of  water  from  the  Continent,  precipi- 
tated the  question  of  the  powers  of  the  United  States 
Government  over  the  inhabitants  of  these  regions  and  of 
their  Liberties  under  the  Constitution.  This  question 
was  tested  under  the  two  main  issues  of  the  powers  of 
Congress  to  levy  special  duties  upon  articles  of  commerce 
between  these  lands  and  the  other  parts  of  the  United  States 
and  to  authorize  the  prosecution  of  persons  for  crime  within 
these  lands  without  Grand  Jury  indictment. 

The  Constitution  provides  that  all  duties,  imposts,  and 
excises  shall  be  laid  with  uniformity  throughout  the  United 
States  and  that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on  present- 
ment or  indictment  by  a  Grand  Jury;  and  the  Supreme 
Court  had  decided  in  the  well-known  case  of  Loughbor- 
ough  vs.  Blake  that  the  phrase  United  States  in  this 
connection  comprehends  all  territory  subject  to  the  juris- 
diction of  the  Government  of  the  United  States.  Never- 
theless Congress  imposed  duties  upon  goods  brought  from 
these  regions  into  other  parts  of  the  United  States,  and 
duties  in  these  regions  upon  goods  brought  from  other 
parts  of  the  United  States  into  them,  without  imposing 
the  like  duties  upon  goods  going  and  coming  between  the 
other  divisions  of  the  United  States  and  authorized  prose- 
cution for  crime  in  them  without  Grand  Jury  indictment. 
The  constitutionality  of  these  Congressional  Acts  was 
tested  in  the  well-known  cases  of  DeLima  vs.  Bidwell, 
Downs  vs.  Bidwell,  Dooley  vs.  the  United  States,  and  Ha- 
waii vs.  Mankichi  in  the  years  1901-2,  and  they  were 
pronounced  constitutional. 

Let  us  now  see,  if  we  can,  what  must  be  the  constitu- 
tional principle  upon  which  these  decisions  rest.  It  must 
be  that  when  foreign  territory  is  acquired  by  the  Govern- 


362  GOVERNMENT  AND  LIBERTY 

ment  of  the  United  States,  or  by  the  United  States  through 
its  Government,  then  the  Government  of  the  United  States 
over  the  inhabitants  of  such  territory  is  unlimited,  until 
by  a  specific  Act  of  Congress  the  limitations  provided  by 
the  Constitution  on  governmental  power  in  behalf  of  In- 
dividual Liberty  are  extended  to  them.-'  We  cannot  logi- 
cally stop  short  of  this,  however  much  some  of  the  Jus- 
tices seemed  to  be  disturbed  by  it.  What  seemed  to 
disturb  them,  however,  was  the  idea  that  the  Congress, 
the  creature  of  the  Constitution,  should  be  held  to  be,  to 
such  a  degree,  master  of  its  creator  as  to  determine  when 
and  where  it  should  be  held  to  be  in  force.  Some  of  them 
tried  to  escape  this  embarrassment  by  the  completely  ar- 
bitrary assertion  that  when  Congress  shall  have  formally 
introduced  the  Constitution  into  such  places,  it  may  never 
withdraw  the  same  from  them.  The  only  completely  log- 
ical position  is  that  the  clause  of  the  Constitution  which 
vests  in  Congress  the  power  to  make  all  needful  rules  and 
regulations  respecting  the  territory  and  other  property  of 
the  United  States  must  be  interpreted  as  vesting  in  Con- 
gress the  unlimited  powers  of  Government,  that  is  sov- 
ereignty, in  such  regions,  and  that  when  Congress  intro- 
duces the  limitations  upon  Government  in  behalf  of  Indi- 
vidual Liberty  recited  in  the  Constitution  it  does  so  sim- 
ply as  a  Congressional  Statute,  having  only  the  force  of 
a  Congressional  Statute  and  subject  to  the  vicissitudes  of 
a  mere  Statute,  that  is,  of  being  modified  or  repealed  by 
the  power  enacting  it  and  of  being  declared  null  and  void 
by  the  Courts.  The  fact  that  such  limitations  were  ex- 
pressed by  Congress  in  its  Statute  in  exactly  the  same 
words  as  those  employed  in  the  Constitution  or  were 
simply  referred  to  by  Congress  as  such  and  such  provi- 
sions of  the  Constitution  cannot  change  their  nature  when 


THE  EFFORT  OF  AMERICA  363 

enacted  by  Congress  under  its  power  to  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other 
property  of  the  United  States.  They  became  simply  parts 
of  a  Congressional  Statute  and  as  such  subject  to  modi- 
fication and  repeal  by  Congress  at  will.  This  view  of 
the  subject  relieves  us  of  the  embarrassment  of  attribut- 
ing to  Congress  a  power  over  the  Constitution  in  refer- 
ence to  such  territory,  a  power  to  let  the  Constitution  in 
or  keep  it  out  of  its  own  volition,  and  at  the  same  time  it 
places  that  despotic  power  in  the  hands  of  the  Govern- 
ment of  the  United  States  necessary  to  the  successful 
realization  of  an  imperial  policy,  necessary  to  the  Gov- 
ernment of  Colonies  and  Dependencies  inhabited  by  people 
incapable  of  self-government. 

The  only  trouble  about  taking  this  completely  logical 
position  thus  frankly  expressed  is  that  it  makes  the  Govern- 
ment of  the  United  States,  in  such  territory,  simply  des- 
potism, benevolent  and  beneficent,  perhaps — yes,  probably 
—but  a  despotism,  stripped  of  every  bit  of  constitutional 
hypocrisy  and  standing  there  bald  and  bare  and  unmis- 
takable. There  is  no  question  that  an  unlimited  Govern- 
ment is  necessary  for  the  successful  realization  of  a  colonial 
policy,  i.  e.,  unlimited  in  the  early  periods,  at  least,  of  rule 
in  the  Colony  or  Dependency. 

But  what  will  be  the  reflex  influence  upon  the  Govern- 
ment at  home  of  exercising  despotic  or  unlimited  power 
in  Dependencies?  What  will  be  the  effect  upon  other 
parts  of  the  Constitution  of  finding  one  part  where  in 
time  of  peace  and  civil  administration  there  is  no  lim- 
itation upon  the  powers  of  Government?  May  not  this 
prove  to  be: 

"The  little  pitted  speck  in  garnered  fruit, 
That  rotting  inward  slowly  moulders  all "  ? 


364  GOVERNMENT  AND  LIBERTY 

I  cannot  forget  the  great  struggle  in  the  Supreme  Court 
of  the  United  States  over  these  deep  questions  nor  the 
differences  of  opinion  upon  the  vital  points,  so  great  that 
only  a  bare  majority  of  the  Justices  upheld  the  decisions 
and  they  could  not  agree  concerning  the  principle  upon 
which  to  base  it.  The  Irish  wit  of  Mr.  Dooley  properly 
described  the  situation  when  he  told  his  friend  Hennessey 
that  the  decision  in  these  cases  was  rendered  by  Justice 
Brown,  eight  Justices  dissenting.  Nor  can  I  ever  forget 
the  grave  concern  which  spread  over  the  country,  espe- 
cially among  men  learned  in  the  peculiar  character  of  our 
constitutional  law.  The  newspapers  and  magazines  were 
filled  for  a  long  time  with  criticisms  upon  these  decisions 
and  the  reasoning  upon  which  they  were  supported.  Grad- 
ually the  sounds  of  the  conflict  died  away  and  the  assimi- 
lation of  the  new  aliment  went  silently  on  transforming 
the  national  tissues  and  preparing  the  national  opinion 
for  another  and  a  much  greater  change  in  our  constitu- 
tional adjustment  of  Government  and  Liberty  to  each 
other. 

The  occasion  of  this  change  was  the  vast  development 
of  the  Corporation  system  in  the  business  of  the  country, 
effected  during  the  twenty  years  from  1890  to  1910,  and 
the  popular  hostility  to  the  Corporations  and  the  methods 
attributed  to  them. 

Few  men  in  this  country  have  ever  troubled  themselves 
to  inquire  deeply  and  impartially  into  the  nature  of  a 
Corporation,  especially  a  private  Corporation.  They  gen- 
erally have  some  kind  of  a  vague  conception  that  it  is 
some  sort  of  a  devilish  contrivance  through  which  a  few 
malevolent  and  greedy  spirits  are  gradually  absorbing  the 
wealth  of  the  world.  It  must  be  confessed  that  it  has 
only  too  often  subserved  the  purpose.  But  we  must  dis- 


THE  EFFORT  OF  AMERICA  365 

tinguish  the  nature  of  the  thing  from  the  ends  which  it 
may  be  made  to  promote. 

A  Corporation  is  nothing  but  a  combination  of  human 
beings,  who  have  been  authorized  by  Government  to  do 
business  under  certain  privileges,  the  chief  among  which 
are  perpetuity  and  limited  liability,  not  limited  liability 
of  the  Corporation  but  of  the  stockholders,  the  members 
of  the  same.  Most  people  in  these  United  States  who 
have  saved  and  invested  a  little  money  are  now  members 
of  one  or  more  of  these  bodies,  and  the  powers  of  Gov- 
ernment which  correspond  naturally  to  the  corporate  priv- 
ileges just  mentioned  are  those  of  revocation  of  such 
privileges  for  proper  cause,  periodical  revaluation  of  the 
franchise  and  enforcement  of  the  requirement  that  the 
real  and  nominal  capital  shall  correspond. 

The  Corporations  exploited  by  dishonest  officials  and 
directors  for  improper  self-enrichment  are  few  in  com- 
parison with  those  which  are  not,  but  the  many  have 
to  bear  the  sins  of  the  few,  and  the  politicians  know  that, 
with  universal  suffrage,  there  is  no  surer  way  to  popu- 
larity and  office  than  to  acquire  the  reputation  of  a  trust- 
buster.  The  exercise  of  greater  power  over  Corporations 
by  Government,  of  power  beyond  the  natural  limitations 
upon  the  privileges  granted  them,  has  been  claimed  and 
approved  on  the  ground  that  this  was  necessary  to  pro- 
tect the  Liberty  of  the  Individual.  Corporations  were 
made  subject  not  only  to  an  administrative  control  not 
imposed  on  the  same  business  when  carried  on  by  indi- 
viduals or  firms  not  having  corporate  privileges,  but  Cor- 
porations were  singled  out  and  a  tax  upon  their  incomes, 
which  is  nothing  else  than  the  incomes  of  the  individual 
stockholders,  was  imposed  under  the  title  of  an  excise 
tax  upon  their  privileges  as  measured  by  their  incomes. 


366  GOVERNMENT  AND  LIBERTY 

The  Supreme  Court  approved  of  this  exaction  not  as  being 
a  tax  upon  property  nor  upon  the  income  from  property, 
but  as  a  license  to  do  business  under  corporate  privileges. 
The  difference,  from  the  point  of  view  of  constitutional 
law,  lay  in  the  principle  that,  as  a  tax  on  property  or  the 
income  from  property,  it  would  have  been  necessary  to 
have  distributed  the  same  among  the  States  of  the  Union 
according  to  their  respective  populations,  while  as  a  li- 
cense or  excise  it  was  only  necessary  to  levy  it  with  uni- 
formity throughout  the  United  States.  This  latter  was 
what  the  friends  of  the  exaction  wanted  and  the  Judicial 
decision  was  a  triumph  for  them. 

Encouraged  by  the  success  of  this  move  they  now  suc- 
ceeded in  influencing  Congress  to  enact  a  measure  impos- 
ing a  tax  upon  the  income  of  Individuals,  calling  it  an 
excise.  They  called  it  a  measure  for  extending  the  excise 
upon  Corporations  to  Individuals.  The  purpose  was  to 
avoid  the  necessity  of  distributing  this  exaction  among 
the  States  of  the  Union  according  to  their  respective  pop- 
ulations, and  to  levy  it  under  the  limitations  of  uniform- 
ity throughout  the  United  States.  The  inhabitants  of 
the  South  and  the  West  have  manifested  the  view  that 
under  this  limitation  the  burden  of  the  exaction  could 
be  made,  by  the  fixing  of  the  exemption  clause,  to  fall 
upon  the  East,  and  have  also  manifested  their  desire  to 
do  this;  while  the  politicians  of  all  sections  have  revealed 
the  purpose  of  throwing  the  burden  of  the  exaction,  by 
means  of  this  same  contrivance,  upon  the  relatively  few, 
making  the  tax,  thus,  popular  among  the  exempted  ma- 
jority. Without  any  exemption,  the  tax,  whether  levied 
on  the  principle  of  distribution  among  the  States  of  the 
Union  according  to  their  relative  population  or  on  the 
principle  of  uniformity  throughout  the  United  States, 


THE  EFFORT  OF  AMERICA  367 

would  be  a  fairly  just  and  equal  tax,  since  the  larger  incomes 
are  generally  to  be  found  where  the  larger  populations 
exist.  The  desire  to  class  this  tax  as  an  excise  instead 
of  a  direct  tax  is,  therefore,  to  be  explained  only  in  this 
way,  viz.:  that  as  an  excise,  exemption  from  the  burden 
might  be  accorded  to  some  and  not  to  others,  while  as 
a  direct  tax  this  could  not  be  well  effected. 

It  is  difficult  to  see,  however,  how  any  exemption  was 
compatible  with  the  principle  of  equal  protection  of  the 
law.  We  all  feel  that  this  is  a  very  fundamental  limita- 
tion upon  all  Government  in  our  system,  but,  while  it  is 
an  express  constitutional  limitation  on  the  powers  of  the 
States  of  the  Union,  it  was,  as  to  the  National  Govern- 
ment, only  an  implied  limitation,  if  indeed  it  existed  at 
all,  implied  in  this  case  from  the  provision  that  all  imposts, 
duties,  and  excises  must  be  uniform.  But  even  admitting 
that  the  National  Government  was  under  no  constitutional 
requirement  to  accord  equal  protection  of  the  law,  it  is 
still  very  difficult  to  see  how  a  tax  upon  the  income  of  an 
Individual  could  be  classed  as  an  excise.  An  excise  is  a 
license  tax,  a  tax  upon  the  permission  to  do  something. 
It  would  sound  rather  strange  to  American  ears  to  hear 
that  an  Individual  must  have  the  permission  of  Govern- 
ment to  earn  his  living  and  pay  for  it  as  a  privilege,  with- 
out regard  to  the  pursuit  he  may  follow  or  the  work  he 
may  do. 

The  President  apparently  regarded  the  attempt  to  tax 
the  incomes  of  Individuals  under  the  name  of  an  excise 
as  a  subterfuge,  as  a  way  of  escaping  the  decision  of  the 
Supreme  Court  in  the  case  of  Pollock  vs.  The  Farmers' 
Loan  and  Trust  Company,  which  held  an  income  tax  to 
be  a  direct  tax,  and  which  was  the  authoritative  interpre- 
tation of  the  constitutional  provision.  He,  therefore,  ve- 


368  GOVERNMENT  AND  LIBERTY 

toed  the  bill  and  the  Houses  of  Congress  could  not  repass 
it  by  sufficient  majority  to  overcome  the  veto.  In  his 
veto  message,  however,  the  President  suggested  an  Amend- 
ment to  the  Constitution,  whereby  the  income  tax  might 
be  taken  from  under  the  limitation  imposed  by  the  Con- 
stitution upon  the  levy  of  direct  taxes  and  placed  under 
that  obtaining  with  reference  to  duties,  imposts,  and  ex- 
cises. I  think  the  President  made  a  grave  mistake  in 
recommending  this.  He  simply  suggested  with  approval 
the  idea  that  things  may  be  given  names  in  the  Constitu- 
tion without  any  regard  to  their  natural  character.  In  a 
minor  way  he  was  simply  repeating  the  error  of  the  Roman 
Emperor  who  called  his  horse  a  senator.  He  had  very 
properly  objected  to  Congress  doing  this  sort  of  thing,  but 
did  not  seem  to  appreciate  that  the  amending  power  should 
not  do  it.  He  saw  clearly  that  back  of  Congress  was  the 
Constitution  as  interpreted  by  the  Judiciary,  but  did  not 
appear  to  see  that  back  of  the  Constitution  were,  or  at 
least  ought  to  be,  the  sound  principles  of  political  science, 
which  deal  with  things  according  to  their  nature,  and  not 
as  a  jugglery  of  artificial  names. 

This  suggestion  on  the  part  of  the  President  has  been 
finally  realized  in  a  way  which,  I  cannot  believe,  he  fore- 
saw or  would  now  approve.  The  Houses  of  Congress 
acted  quickly  and  very  inconsiderately  in  formulating  the 
Amendment.  The  professional  politicians  were  tumbling 
over  each  other  to  find  a  popular  issue.  The  redistribu- 
tion of  wealth  by  governmental  power  was  the  winning 
idea  of  the  day  among  the  masses,  that  is,  among  the 
electoral  majority,  and  they  framed  this  Amendment  to 
meet  that  idea.  They  masqueraded,  indeed,  under  the 
high-sounding  patriotic  principle  that  the  Government 
should  be  empowered  to  get  adequate  revenue  in  times 


THE  EFFORT  OF  AMERICA  369 

of  emergency.  But  they  were  understood  as  they  ex- 
pected to  be  and  intended  to  be.  They  framed  the  crud- 
est, most  reckless  bit  of  constitutional  legislation  known 
to  our  history.  It  simply  made  waste  paper  of  the  Con- 
stitution in  respect  to  the  relation  of  Government  to  the 
constitutional  rights  of  the  Individual  to  his  property.  It 
reads:  "Congress  shall  have  power  to  lay  and  collect 
taxes  on  incomes  from  whatever  source  derived  without 
apportionment  among  the  several  States  and  without  re- 
gard to  any  census  or  enumeration. "  That  is,  the  Six- 
teenth Amendment  takes  the  tax  on  incomes,  which  by 
the  law  of  the  land  and  by  a  sound  political  science  is 
held  to  be  a  direct  tax,  and  which,  down  to  the  adoption  of 
this  Amendment,  March  i,  1913,  could  be  laid  by  Congress 
only  under  the  limitation  of  apportionment  among  the 
States  according  to  their  relative  population,  out  from 
under  this  limitation,  without  declaring  this  tax  to  be  a 
duty,  impost,  or  excise,  that  is,  without  placing  it  under 
the  limitation  resting  upon  Congress  in  laying  duties,  im- 
posts, or  excises,  the  limitation  of  uniformity  throughout 
the  United  States.  According  to  the  Sixteenth  Amend- 
ment the  power  of  Congress  to  lay  and  collect  taxes  on 
incomes  from  whatever  source  derived  is  now  absolutely 
unlimited.  Congress  may  now  exercise  the  whole  power 
of  sovereignty  upon  this  subject. 

The  vast  importance  of  this  subject  is  revealed  when 
we  reflect  that  a  tax  on  incomes,  which  may  be  laid  with- 
out any  constitutional  limitations,  puts  all  property  and 
all  human  effort  at  the  mercy  of  the  governmental  body 
which  may  lay  such  a  tax.  It  is  not  like  any  other  tax. 
Other  taxes  cover  only  a  part  of  the  property  or  a  part 
of  the  labor  or  activity  of  the  individual.  But  the  un- 
limited income  tax  takes  the  whole  thing  or  may  take 


370  GOVERNMENT  AND  LIBERTY 

the  whole  thing  at  the  option  of  the  Government.  In 
fact,  since  the  adoption  of  the  Sixteenth  Amendment  we 
have  no  real  constitutional  Government  upon  that  most 
important  of  all  subjects,  the  relation  of  Government  to 
the  Individual's  right  to  property. 

What  is  genuine  constitutional  Government  ?  It  is  not 
simply  a  Government  based  on  a  written  document,  with- 
out regard  to  whence  that  document  came  and  what  it 
provides.  Genuine  constitutional  Government  rests  upon 
two  fundamental  principles,  principles  without  which, 
whatever  else  it  may  be,  it  is  not  genuine  constitutional 
Government.  These  two  principles  are,  first,  that  it  must 
be  representative  Government  and,  second,  that  it  must 
be  limited  Government.  That  is,  first,  there  must  be 
back  of  Government  a  more  ultimate  authority,  which 
decrees  the  organization  of  the  Government,  vests  it  with 
powers,  and  imposes  upon  it  limitations.  This  body  or 
organization  we  denominate  in  political  science  the  sov- 
ereign. Now,  in  genuine  constitutional  Government  this 
body  must  not  govern.  If  this  body  should  govern,  such 
Government  would  necessarily  be  absolute  and  unlimited, 
since,  as  the  original  and  most  ultimate  authority  in  the 
order  of  authorities,  there  would  be  nothing  back  of  it 
which  could  control  or  restrain  it. 

But  this  is  not  yet  enough  for  the  establishment  of 
genuine  constitutional  Government.  Constitutional  Gov- 
ernment must  be  representative  Government,  but  repre- 
sentative Government  can  exist  without  being  genuine 
constitutional  Government.  Let  us  suppose,  for  example, 
that  there  exists  in  a  given  political  system  a  sovereign 
power  organized  back  of,  separate  from,  and  supreme  over 
the  Government,  but  that  it  should  vest  all  of  its  own 
power  without  exception  or  limitation  in  the  Government, 


THE  EFFORT  OF  AMERICA  371 

or  all  of  its  power  in  regard  to  certain  most  important 
subjects  in  the  Government,  such  a  Government  would 
be  representative,  but  it  would  not  be  constitutional  in 
any  true  and  genuine  sense  of  the  word.  It  would  be 
an  absolute  Government,  in  whole  or  part,  no  matter 
how  benevolently  disposed.  In  order  to  be  constitutional 
it  must  be  subject  to  limitations  imposed  upon  it  by  the 
sovereign  in  behalf  of  the  Rights  and  Immunities  of  the 
Individual.  Constitutional  law  is  a  body  of  limitations 
on  governmental  power  and  you  dare  not  call  any  docu- 
ment a  Constitution,  no  matter  from  what  source  it  may 
come,  which  is  not  such.  It  would  not  solve,  in  the  slight- 
est degree,  the  great  problem  of  political  history  and  po- 
litical science,  the  reconciliation  of  Government  with  Lib- 
berty.  It  would  simply  sacrifice  Liberty  to  Government. 

Now,  the  sovereign,  through  the  Sixteenth  Amendment 
to  the  Constitution,  has  done  just  this  in  regard  to  the 
rights  of  the  Individual  to  his  property.  It  has  made  \J 
over  to  the  Government  the  whole  power  of  the  sovereign,  /> 
unlimited  and  unqualified,  to  take  what  it  will  and  in  any 
way  it  will  from  the  Individual,  to  take  from  one  Individ- 
ual and  not  from  another,  as  it  will,  and  to  take  in  dif- 
ferent proportion  from  different  Individuals,  as  it  will. 
This  is  not  a  power  of  constitutional  taxation.  It  is  the 
power  of  confiscation.  It  is  folly  for  us  to  imagine  that 
we  have  any  longer  a  Constitution  in  regard  to  the  rela- 
tion between  Government  and  the  Individual  in  his  rights 
to  property  or  even  to  his  own  physical  or  mental  efforts. 
That  is  all  gone  and  past  and  it  remains  now  to  be  seen 
what  the  reflex  influence  of  this  vast  change  will  be  upon 
the  other  parts  of  the  Constitution. 

Congress  has  made  swift  use  of  its  new  power.     It  has 
passed  an  Act  for  the  taxing  of  incomes,  which  is  highly 


372  GOVERNMENT  AND   LIBERTY 

discriminatory  and  arbitrary  in  many  directions,  although 
it  was  generally  understood  that  Congress  would  make 
no  use  of  the  power  granted  in  the  Amendment  except  in 
times  of  great  emergency.  The  Act  was  a  retroactive  law. 
It  confounded  principal  with  income.  It  exacted  payment 
of  the  tax,  in  part,  before  it  was  due.  It  discriminates 
against  living  in  regular  wedlock.  It  discriminates  against 
persons  having  incomes  of  from  three  to  one  hundred 
thousand  dollars  as  compared  with  persons  having  incomes 
of  less  than  three  thousand  dollars,  on  the  one  side,  or 
more  than  one  hundred  thousand  dollars  on  the  other. 
And  it  requires  private  parties  to  act  as  governmental 
collection  agents  without  holding  office  or  receiving  salary. 

Under  the  Constitution  as  it  was  before  the  Sixteenth 
Amendment  all  this  would  have  been  fatal  to  the  consti- 
tutionality of  the  Act,  but  under  the  Sixteenth  Amend- 
ment, which  is  the  last  word  of  the  sovereign  upon  this 
subject,  I  do  not  see  how  these  things,  or  anything  else 
which  the  Congress  may  choose  to  do  in  regard  to  an 
income  tax,  can  be  judicially  nullified,  or  nullified  in  any 
way,  except  by  another  Amendment. 

It  is,  indeed,  a  fundamental  principle  of  hermeneutics 
that  all  parts  of  a  Constitution  or  any  other  legal  instru- 
ment must  be  taken  together  and  each  part  so  interpreted 
as  to  give  every  other  its  natural  force  and  meaning.  But 
this  principle  has  full  force  only  when  all  parts  of  the  in- 
strument are  enacted  at  one  and  the  same  time.  Where, 
on  the  contrary,  it  consists  of  a  number  of  successive , en- 
actments, as  in  the  case  of  a  Constitution  with  Amend- 
ments, then  another  equally  fundamental  principle  con- 
trols, viz.:  that  the  last  will  of  the  sovereign  is  law  and 
displaces  everything  preceding  in  conflict  with  it. 

Look  at  it  as  we  may,  the  new  interpretation  of  the 


THE  EFFORT  OF  AMERICA  373 

provision  of  the  Constitution  giving  Congress  the  power 
to  make  all  needful  rules  and  regulations  respecting  the 
territories  of  the  United  States,  whereby  Congress  is  held 
to  possess  unlimited  power  in  the  Government  of  the 
Territories  and  Dependencies  of  the  Union,  and  the  Six- 
teenth Amendment  to  the  Constitution,  have  given  us  a 
new  political  system,  one  in  which  Government  is  accorded 
far  greater  powers  than  it  possessed  in  our  system  before 
1898.  There  is  nothing  now  to  prevent  the  Government 
of  the  United  States  from  entering  upon  a  course  of  con- 
quest and  of  empire,  especially  throughout  the  Americas, 
to  which  the  more  and  more  extravagant  interpretations 
of  that  idol  rather  than  ideal  of  our  policy,  named  the 
Monroe  Doctrine,  is  ever  tempting  us.  We  are  by  no 
means  a  peaceably  inclined  people.  The  continuous  con- 
quest of  a  new  country  from  the  savage,  the  wild  beast, 
and  the  jungle,  through  a  period  of  three  centuries,  does 
not  tend  to  produce  a  peaceably  inclined  people,  but  an 
adventurous,  warlike,  and  vainglorious  people.  In  fact, 
besides  being  belligerent  and  boastful,  we  are  restless, 
nervous,  and  at  times  hysterical.  We  have  just  the  quali- 
ties to  answer  the  call  of  a  Napoleon  in  the  Presidency. 
And*  now  that  the  Government  has  free  hand  with  the 
purse-strings  of  the  rich,  without  being  compelled  to  con- 
sult them  in  the  slightest  degree  as  to  the  amount  it  will 
take  and  as  to  the  purpose  to  which  it  shall  be  applied, 
and  since  Congress  has  become  a  body  rather  for  approv- 
ing the  plans  and  deeds  of  the  President  than  for  control- 
ling him  and  for  legislating  independently,  it  is  possibly 
only  a  question  of  time  when  our  Napoleon  will  appear 
and  take  advantage  of  these  opportunities;  at  least,  it 
would  only  be  natural  that  he  should  and  it  is  to  be  ap- 
prehended that  he  will. 


374  GOVERNMENT  AND  LIBERTY 

The  events  of  these  sixteen  years  since  1898  have  brought 
about  a  serious  readjustment  of  the  relation  of  Government 
to  Liberty  in  our  political  system,  and  that  to  the  advan- 
tage of  Government  at  the  cost  of  Liberty.  And  the  ten- 
dency which  still  manifests  itself  is  to  move  right  on  in 
this  line  of  development.  And  I  do  not  see  that  the 
measures  proposed  in  some  quarters  as  a  means  of  con- 
trolling it  will  have  the  effect.  In  the  long  run  it  seems 
to  me  more  probable  that  they  will  facilitate  and  acceler- 
ate it.  These  measures  are  known  as  the  popular  initia- 
tive, the  referendum,  and  the  recall.  The  idea  in  them 
all  is,  as  most  of  their  supporters  claim,  to  increase  the 
influence  of  the  people  over  the  activities  of  Government, 
and  it  is  simply  assumed  by  them  all  that  this  is  a  good 
thing,  to  any  degree  and  effected  in  any  manner.  Both 
of  these  points,  however,  need  further  and  much  more 
particular  and  accurate  consideration. 

In  the  first  place,  the  influence  of  the  people  over  the 
Government,  where  the  principle  of  popular  sovereignty 
is  the  basis  of  the  Government,  cannot  be  advanced  to 
the  point  of  the  people,  as  sovereign,  actually  governing, 
without  destroying  the  limitations  upon  governmental 
power,  that  is,  without  making  Government  absolute, 
without  setting  constitutional  Government  aside,  since 
constitutional  Government  means  nothing  at  all  unless  it 
be  representative  limited  Government.  The  line  between 
influence  and  control  must  be  correctly  and  carefully 
drawn.  The  sovereign  must  not  be  substituted  for  the 
Government.  What  will  generally,  if  not  always,  happen 
is  that  it  will  not  be  the  sovereign  people,  that  is,  the 
whole  people  in  sovereign  organization,  which  will  con- 
trol the  activities  of  Government,  but  that  it  will  be  a 
certain  part  of  the  people,  not  that  part  which  is  occu- 


THE  EFFORT  OF  AMERICA  375 

pied  with  private  business,  with  making  a  living  and 
something  more  with  which  to  pay  taxes,  but  that  part 
which  is  loafing  about  the  public  buildings,  liquor  saloons, 
and  gambling-houses,  waiting  for  something  to  turn  up 
whereby  a  job,  a  rake-off,  a  concession,  or  a  divide  of  some 
kind  may  be  had;  in  other  words,  it  will  be  "the  mob  of 
the  Forum,"  that  part  which  one  day  plunges  society  into 
anarchy  and  the  next  day  is  shouting  hurrahs  for  Caesar. 
The  trouble  with  the  whole  scheme  is,  from  the  point  of 
view  of  sound  political  science,  that  it  seeks  to  introduce 
something  having  legal  force  between  the  sovereign  and 
the  Government,  between  the  sovereign  and  the  constitu- 
tional Liberty  of  the  Individual,  a  something  which  destroys 
constitutional  Government,  on  the  one  side,  and  suppresses 
Individual  Liberty,  on  the  other,  and  finally  falls  itself  a 
prey  to  the  supreme  demagogue  of  the  day. 

There  is  nothing  sound  in  the  popular  initiative,  which 
may  not  now  be  better  attained  by  the  existing  right  of 
petition.  There  is  nothing  sound  in  the  referendum  except 
the  occasional  appeal  to  the  actual  sovereign  to  amend  or 
revise  the  organic  law.  There  is  no  appeal  in  a  sound 
political  science  from  Government  except  to  the  sovereign, 
and  the  frequent  appeal  to  the  sovereign  in  the  ordinary 
work  of  Government  displaces,  as  I  have  already  said, 
constitutional  Government  by  unlimited  Government.  I 
do  not  criticise  the  referendum  as  being  radical,  the  com- 
mon objection  to  it.  It  is  not  always  radical.  It  is  fre- 
quently conservative  and  sometimes  conservative  in  a 
very  bad  sense.  It  sometimes  prevents  the  Legislature 
from  doing  what  ought  to  be  done,  and  it  always  lessens 
the  sense  of  responsibility  on  the  part  of  the  Legislature; 
it  always  has  a  deteriorating  influence  on  Government. 

Finally,  the  recall  when  applied  to  elected  officials  is 


376  GOVERNMENT  AND  LIBERTY 

simply  a  method  of  dismissing  elected  officers  by  the  body 
which  elects.  It  has,  certainly,  some  sort  of  an  analogy 
to  the  principle  of  appointed  officials  being  subject  to  dis- 
missal by  the  same  authority  which  appoints  them.  It 
tends  to  give  the  electorate  within  an  administrative  divi- 
sion a  certain  control  over  the  officials  chosen  by  it.  When 
applied  to  members  of  a  legislative  body  it  reverses  the 
principle  contained  in  most  of  the  Constitutions  of  the 
present  day,  viz.:  the  principle  of  uninstructed  represen- 
tation, the  principle  which  holds  that  it  is  the  judgment 
of  the  legislator  and  not  the  will  of  the  voter  which  should 
make  the  law.  The  recall  when  applied  to  the  legislator 
is  the  old  question  of  will  against  reason  in  the  philosophy 
of  legislation,  it  is  the  Romanic  principle  against  the  Teu- 
tonic. When  applied  to  officials,  all  there  is  of  value  in 
it  may  be  found  in  the  existing  process  of  impeachment. 
When  it  goes  beyond  this  it  will  prove,  in  most  cases,  to  be 
only  another  encouragement  not  to  execute  the  laws  against 
those  who  are  interested  in  what  is  vulgarly  known  as  the 
" wide-open  town."  Everybody  knows  that  the  majority 
of  the  active  men  in  American  politics  constitute,  as  a  rule, 
that  quarter  of  the  electorate  pecuniarily  interested  in  the 
liquor  saloons,  the  gambling-houses,  the  brothels,  and  in 
the  schemes  of  organized  labor,  the  first  named  figuring 

j  chiefly  in  local  politics  and  the  last  named  chiefly  in  State 
•(  and  national  politics.  These  men  are  generally  without 

^  any  public  sense.  They  are  bound  together  by  class  interest 
and  seek  to  use  public  power  for  private  ends  or  to  pre- 
vent the  use  of  public  power  for  the  general  good.  They 
control  by  lending  their  aid  to  that  party  which  will  go 
furthest  in  securing  the  enactment  of  legislation  friendly 
to  their  peculiar  interests  or  in  preventing  the  enforce- 
ment of  legislation  not  partial  to  those  interests.  They 


THE  EFFORT  OF  AMERICA  377 

have  the  most  compact  and  active  organization  existing 
in  the  politics  of  to-day,  and  they  are  just  the  men  who 
would  be  most  likely  to  engineer  the  recall  of  officials  and 
emasculate  the  administration  of  all  law  not  intended  and 
calculated  to  further  their  class  interests.  What  are  gen- 
erally termed  the  "interests,"  the  "capitalistic  interests," 
would  also  find  in  the  recall  an  opportunity  to  control 
officials.  Probably  anybody  who  really  knows  anything 
about  practical  politics  and  is  himself  not  seeking  office 
or  popular  applause  will  testify  that  the  influence  and 
power  of  the  capitalistic  interests  are  usually  overrated, 
simply  because  the  force  of  numbers  in  the  electorate  is 
against  them.  But  whatever  influence  they  may  have  would 
be  intensified  by  the  opportunities  of  the  recall.  Espe- 
cially would  this  be  true  if  the  recall  should  be  applied 
to  the  Judges  of  the  Courts. 

Neither  political  science  nor  the  general  constitutional 
law  of  the  present  favor  the  principle  of  the  appointing 
power  having  the  power  of  dismissal  in  the  case  of  the 
Judge.  The  Judge  is  not  executing  the  orders  of  a  gov- 
ernmental superior  as  is  the  executive  officer.  He  is  ex- 
ercising a  judgment,  and  therefore  a  discretion,  supposed 
to  be  superior  to  that  of  the  person  or  persons  who  ap- 
point him  or  the  voters  who  elect  him,  in  the  interpre- 
tation and  application  of  the  law.  No  intelligent  and 
independent  administration  of  justice  could  be  maintained 
under  such  a  practise.  The  test  of  constitutional  Civil 
Liberty  is  the  power  to  uphold  the  Rights  and  Immuni- 
ties of  a  single  Individual,  not  only  against  a  majority  of 
those  who  would  probably  participate  in  the  recall  of  a 
Judge,  but  against  a  majority  containing  every  other  in- 
dividual in  the  State  or  nation.  Nothing  short  of  the 
inviolable  tenure  of  the  Judge  can  secure  this.  It  is  quite 


378  GOVERNMENT  AND   LIBERTY 

enough  that  he  is  subject  to  impeachment  for  crimes  and 
maladministration  in  office. 

But  most  fatal  of  all  to  the  existence  of  constitutional 
Government  and  constitutional  Liberty  would  be  what  is 
termed  the  recall  of  the  Judicial  decision.  This  would  be 
nothing  short  of  the  substitution  of  the  will  of  a  part  of 
the  people,  especially  of  that  part  which  would  be  most 
ignorant  of  the  true  relation  of  Government  to  Liberty, 
for  the  reason  of  the  Jurist  in  the  interpretation  and  appli- 
cation of  the  law.  This  whole  scheme  of  inserting  this 
third  something  between  the  sovereign  and  the  Govern- 
ment created  and  limited  by  the  sovereign  can  have  no 
other  result  than  the  dethronement  of  the  rightful  sov- 
ereign, the  demoralization  of  the  rightful  Government, 
and  the  subjection  of  the  constitutional  Liberty  of  the 
Individual  to  the  tyranny  of  a  class  pursuing  its  own 
interests  under  the  name  of  "social  justice." 

No  such  nostrums  as  these  can  be  a  cure  for  the  dis- 
ease of  governmental  absolutism  introduced  into  our  body 
politic  by  the  acquisition  of  Dependencies  and  the  Six- 
teenth Amendment.  The  only  way  to  check  the  inroads 
of  these  spots  of  decay  in  our  constitutional  system  is  to 
get  rid  of  all  these  Dependencies  as  soon  as  possible  and 
to  amend  the  Sixteenth  Amendment  so  as  to  place  the 
power  of  Congress  over  the  property  of  the  Individual 
under  proper  limitations,  such  limitations  as  will  distin- 
guish taxation  from  confiscation  and  hold  the  Govern- 
ment to  its  proper  aims,  aims  reached  also  by  proper 
means. 

We  are  further  away  to-day  from  the  solution  of  the 
great  problem  of  the  reconciliation  of  Government  and 
Liberty  than  we  were  twenty  years  ago.  In  principle  we 
have  too  much  Government  and  in  practise  too  slack  and 


THE  EFFORT  OF  AMERICA 


379 


irregular  execution  of  the  law.  This  cuts  both  ways  into 
the  constitutional  Liberty  of  the  Individual,  for  it  is  gen- 
erally the  law  supporting  that  Liberty  which  is  most  fault- 
ily executed.  Congress  has  been  liberated  from  all  limi- 
tations in  dealing  with  the  property  of  the  Individual  by 
the  Sixteenth  Amendment  and  from  a  conservative  in- 
ternal structure  and  composition  for  the  use  of  this  great 
power  by  the  Seventeenth,  which  makes  of  the  Senate 
another  House  of  smaller  membership. 

It  seems  to  me  that  we  are  swaying  from  the  path  of 
true  progress.  That  path  must  lead  ever  to  the  better  and 
more  perfect  reconciliation  of  Government  and  Individual 
Liberty,  and,  as  we  have  seen,  this  signifies,  in  ultimate 
analysis,  four  things,  viz.:  a  true  and  correct  organiza- 
tion of  the  sovereign  power  as  the  basis  of  all  Govern- 
ment and  Liberty,  so  as  to  give  every  element  and  every 
force  within  the  state  its  proper  value  and  open  the  way 
for  its  legitimate  activity  and  for  the  exercise  of  its  nat- 
ural weight;  second,  a  Government  of  conservative  struc- 
ture and  limited  powers,  a  Government  which  will  not 
only  be  proof  against  the  usurpation  of  a  despot,  but  which 
cannot  be  adapted  to  further  the  rule  of  class  interests; 
tMrd,  a  fully  rounded,  well-defined  sphere  of  Individual 
Immunity  from  governmental  power,  such  as  will  liber- 
ate the  physical,  intellectual,  and  moral  capacity  of  the 
Individual,  stimulate  it  to  the  fullest  development  and 
encourage  its  service  to  the  advancement  of  civilization; 
and  lastly,  a  learned,  experienced,  impartial,  unprejudiced, 
upright  organ  for  maintaining  in  detail,  through  its  in- 
terpretations and  judgments,  the  constitutional  balance 
between  Government  and  Liberty. 

Down  to  the  year  1898,  we  had  all  this  in  fair  degree 
and  in  fuller  measure  than  any  other  state  of  the  world. 


380          GOVERNMENT  AND    LIBERTY 

It  needed  some  readjustments,  but  no  radical  or  revolu- 
tionary changes.  But  it  did  not  lend  itself  to  an  imperial 
policy  abroad  nor  to  a  paternal  programme  at  home.  A 
School  of  Sociologists  and  Political  Economists  arose,  who, 
impatient  of  the  voluntary  methods  of  religion,  charity, 
and  philanthropy,  have  sought  to  accomplish  what  they 
call  social  justice,  the  social  uplift,  by  governmental  force. 
There  is  no  question  that  they  have  exercised  a  strong 
influence  in  directing  the  thought  of  the  present,  and 
they  have  taught  the  politicians  that  there  is  no  vote- 
catcher  in  a  system  of  universal  suffrage  comparable  to 
the  promise  of  forcing  those  who  have  to  divide  with 
those  who  have  not  or  have  less.  The  Jingo  and  the 
Social  Reformer  have  gotten  together  and  have  formed  a 
political  party,  which  threatened  to  capture  the  Govern- 
ment and  use  it  for  the  realization  of  their  programme  of 
Caesaristic  paternalism,  a  danger  which  appears  now  to 
have  been  averted  only  by  the  other  parties  having  them- 
selves adopted  this  programme  in  a  somewhat  milder  de- 
gree and  form.  All  parties  are  now  declaring  themselves 
to  be  Progressives,  and  all  mean  in  substance  the  same 
thing  by  this  claim,  viz.:  the  increase  of  governmental 
power  over  the  constitutional  Immunities  of  the  Individual, 
the  solution  by  force  of  the  problems  of  the  social  rela- 
tions heretofore  regulated  by  influence,  by  religion,  con- 
science, charity,  and  human  feeling,  the  substitution  of 
the  club  of  the  policeman  for  the  crosier  of  the  priest,  the 
supersession  of  education,  morals,  and  philanthropy  by 
administrative  ordinance. 

Now,  all  this  may  be  necessary,  but  is  it  progress  in 
civilization?  It  may  be  that  the  character  of  our  people 
has  so  deteriorated  during  the  last  twenty-five  years  that 
the  ominous  change  in  the  relation  of  Government  to 


THE  EFFORT  OF  AMERICA  381 

Liberty  ought  to  be  made,  but  let  us  consider  before  we 
do  it  whether  there  be  not  a  better  way,  a  more  American 
way;  whether  a  revival  of  religion  and  morals,  a  re-estab- 
lishment of  the  influence  and  functions  of  the  Churches, 
and  an  improvement  of  our  system  of  education  may  not 
better  subserve  the  social  uplift  and  still  preserve  our 
Liberty. 

And  let  us  also  profoundly  reflect  what  may  be  the 
effect  of  a  vast  advance  in  governmental  power  and  ac- 
tivity. In  his  criticism  of  Hasbach's  recent  most  valu- 
able work  upon  Modern  Democracy,  Professor  Schmoller 
relates  that  when,  in  the  year  1890,  the  question  of  social 
reform  was  being  considered  by  the  Prussian  Council  of 
State,  the  Emperor  uttered  these  profound,  and  for  so 
young  a  man,  remarkable  words.  He  said:  "Das  Mass 
ertraglicher  socialer  Reform  ist  bedingt  durch  die  Starke 
der  Staatsgewalt  und  deshalb  ist  bei  uns  Vieles  moglich, 
was  anderwarts  vielleicht  gefahrlich  ware."  That  is,  a 
permanent,  stable,  powerful  Government,  a  Government 
standing  over  all  classes  in  the  Society  and  independent 
of  them  all,  might  be  trusted  to  say  how  far  force  can 
be  safely  employed  in  requiring  sacrifices  from  one  class 
to  another,  but  a  changing,  shifting  Government,  a  Gov- 
ernment representing  either  the  property  class,  or  the 
propertyless  class,  especially  a  Government  representing 
the  propertyless  or  small-property  class,  a  Government 
representing  the  modern  democracy  under  universal  suf- 
frage, a  Government  representing  the  class  to  be  benefited 
by  the  confiscation  and  redistribution  of  wealth  through 
governmental  force,  cannot  be  safely  trusted  with  any  such 
power.  It  would  become  a  temporary  despotism,  which 
would  destroy  property,  use  up  accumulated  wealth,  make 
enterprise  impossible,  discourage  intelligence  and  thrift, 


382         GOVERNMENT   AND   LIBERTY 

encourage  idleness  and  sloth,  and  pauperize  and  barbarize 
the  whole  people. 

This  is  no  idle  prophecy.  The  whole  history  of  the 
world's  political  development  sustains  it.  The  history  of 
that  development  shows  beyond  any  question  or  cavil  that 
a  Republic  with  unlimited  Government  cannot  stand, 
that  a  Republic,  which  makes  its  Government  the  arbiter 
of  business,  is  of  all  forms  of  state  the  most  universally 
corrupt,  and  that  a  Republic,  which  undertakes  to  do  its 
cultural  work  through  governmental  force,  is  of  all  forms 
of  state  the  most  demoralizing.  If  a  state  will  have  Gov- 
ernment undertake  those  tasks  which  naturally  belong, 
or  have  come  through  historical  development  to  belong, 
within  the  sphere  of  Individual  Liberty,  then  it  must 
have  a  Government  lifted  so  far  above  all  class  and  party 
interests  that  it  cannot  be  controlled  or  even  influenced 
by  any  of  them.  But  this  is  authority  reaching  from 
above  downward  and  not  from  below  upward.  This  is 
Monarchy  in  the  original  sense  of  jure-divino  sovereignty. 
This  is  the  reason  for  and  the  advantage  of  its  existence. 
But,  for  us,  this  is  not  progress.  It  is  for  us  retrogression 
of  the  most  positive  kind  known  to  political  history. 

In  the  face  of  this  consideration,  it  is  time,  high  time, 
for  us  to  call  a  halt  in  our  present  course  of  increasing 
the  sphere  of  Government  and  decreasing  that  of  Liberty, 
and  inquire  carefully  whether  what  is  happening  is  not 
the  passing  of  the  Republic,  the  passing  of  the  Christian 
religion,  and  the  return  to  Caesarism,  the  rule  of  the  one 
by  popular  acclaim,  the  apotheosis  of  Government  and 
the  universal  decline  of  the  consciousness  of,  and  the  de- 
sire for,  true  Liberty.  The  world  has  made  this  circuit  sev- 
eral times  before.  Are  we  making  it  again  or  is  it  only 
a  step  backward  in  order  to  get  a  better  foothold  for 


THE  EFFORT  OF  AMERICA  383 

another  advance  in  the  true  direction?  Let  us  hope  it  is 
the  latter  and  make  it  so  by  keeping  always  consciously 
before  us  as  the  goal  of  political  civilization  the  recon- 
ciliation of  Government  with  Liberty,  so  that,  however, 
the  latter  shall  be  seen  to  be  the  more  ultimate,  shall  be 
seen  to  be  both  end  and  means,  while  the  former  is  only 
means.  This  is  fundamental  in  the  profoundest  sense 
and  there  can  be  no  sound  progress  in  political  civilization 
without  it. 


INDEX 


Abelard,  164. 

Abyssinia,  28;  history  and  institutions 
of,  29,  30;  Imperial  absolutism  in,  30; 
influence  of  the  priesthood  in,  30,  31. 

Act  of  Supremacy,  the,  173,  187-189. 

Act  of  Uniformity,  the  English,  225. 

Adrian  II,  138. 

Africa,  independent  states  of,  28-34. 

Alemanni,  the,  88. 

Alexander  III,  144. 

Alfred,  King,  his  system  of  Government 
and  Liberty,  122,  123 

Alien  and  Sedition  Laws,  the,  310. 

Anastasius,  Emperor,  85. 

Anglo-Saxon  state,  the,  113-125;  polit- 
ical customs  brought  by  Anglo-Saxons 
to  England,  113, 114;  internal  changes 
under  the  Heptarchy,  115;  develop- 
ment of  Royal  Government,  115; 
powers  of  the  King  and  the  Earldor- 
men,  115;  the  shire-moot  and  Individ- 
ual Liberty,  116;  the  King's  Theyns, 
and  the  Witenagemots,  117;  Assem- 
blies become  part  of  the  Government, 
117;  conversion  to  Christianity,  118, 
119;  functions  of  the  Church,  119;  in- 
fluence of  the  Church,  120;  the  Church 
broader  than  the  state,  120;  the 
Church  becoming  Government,  121; 
absolutism  in,  121;  under  King  Al- 
fred, 122;  Danish  invasion  and  rule, 
123,  124;  beginning  of  Feudal  system 
in,  124;  administrative  system  of  the 
Danes  and  the  demoralization  of  Roy- 
alty, 124. 

Anselm,  147. 

Appeals  Act,  the,  324. 

Aquinas,  Thomas,  164. 

Arabia,  Mohammedanism  in,  16. 

Aragonesi,  the,  165. 

Archons,  the,  Government  of  Athens  by, 
41,  42,  44-46. 

Areopagus,  Court  of  the,  42-46. 


Argentina,  Constitution  of,  328  et  seq.; 
355,  357- 

Argyle,  Duke  of,  216. 

Aristides,  44. 

Arminius,  Duke  of  the  Hessians,  82. 

Army  Officers,  the  English  Council  of, 
216,  218-220,  223. 

Army,  standing,  creation  of  in  France, 
182,  183. 

Arnulf,  Bishop  of  Metz,  90,  92. 

"Articles  of  Confederation,"  the,  295- 
298. 

Asia,  religious  genius  of,  i;  indepen- 
dent states  of,  2;  political  history  of 
China,  2-8;  of  Japan,  8-15;  of  Per- 
sia, 15-19;  of  Turkey,  10-26;  effect 
on,  of  contact  with  Europe,  26,  27. 

Assembly  of  the  Notables,  the  French, 
233- 

Athens,  origin  and  political  development 
of,  40-45;  war  with  Persia,  44;  decay 
of,  46,  47. 

Augustine,  118. 

Augustus  Princeps,  62. 

Austrasia,  90—93. 

Austria,  absolutism  in,  193;  Revolution 
in,  243;  Constitution  of,  253  et  seq. 

Bacon,  Roger,  164. 
Barbarossa,  144. 

Baronial  league,  the  English,  152. 
Batavian  Republic,  the,  243. 
Becket,  Archbishop,  147. 
Bedloe,  227. 

Belgium,  245;  Constitution  of ,  253  et  seq. 
Benedict  IX,  180. 
Benedictines,  the,  167. 
Beringer,  Duke  of  Friaul,  131. 
Bernhard,  in  Italy,  130. 
Blake's  victory  over  the  Dutch,  218. 
Boleyn,  Anne,  173,  188,  189. 
Bolivia,   Constitution  of,    328   et  seq.; 
population,  355-357- 


385 


386 


INDEX 


Bonaparte,  Louis  Napoleon,  242. 

Bonaparte,  Napoleon,  the  Consulate  of, 
239;  overthrow  of,  240;  political  trans- 
formation of  Europe  under,  243,  244. 

Bona  ventura,  164. 

Boniface  VIII,  94,  100,  146;  conflict 
with  Philip  le  Bel,  179,  180. 

Borgia,  165. 

Bourges,  Church  Council  at,  183. 

Brandenburg,  Margrave  of,  191. 

Brazil,  Constitution  of,  328  et  scq.; 
population,  355-357- 

Brethren  of  Saint  Jerome,  the,  167. 

Buckingham,  Duke  of  (George  Villiers), 
203,  204;  impeachment  of,  205;  as- 
sassination of,  206. 

Buddhism  in  Japan,  9,  10. 

Bulgaria,  Constitution  of,  253  et  seq. 

Caesar,  Government  established  by,  60; 
assassination  of,  61. 

Csesaristic  democracy,  42,  43,  45. 

Caius  Canuleius,  55. 

Calonne,  233,  234. 

Capet,  Hugh,  132. 

Carolingian  Empire,  the,  conditions  con- 
spiring for  the  creation  of,  94-102; 
growth  of  the  Manorial  system,  95; 
•invasion  of  the  Moslems  and  the 
Saxons,  95;  support  of  the  Church 
secured,  96;  reclamation  of  state  do- 
main from  the  Church,  96,  97;  crea- 
tion of  the  Holy  Roman  Empire,  99- 
102;  Carolings  made  Kings  by  divine 
calling,  100 ;  the  Bishop  of  Rome  and 
the  States  of  the  Church,  101;  exten- 
sion of  the  Kingdom  under  Charles, 
10 1 ;  Government  and  sovereignty, 
103;  administrative  system,  104- 
108;  the  Officials,  104;  Cities  and 
Manorial  estates,  105;  Bishop  as 
Count,  105;  Manorial  jurisdiction,  106; 
growth  of  the  Feudal  system,  106;  the 
Assemblies,  107;  Emperor  the  real 
lawgiver,  108;  the  Church  and  Indi- 
vidual Liberty,  108-110;  establish- 
ment of  the  Missi  Dominici,  110—112; 
extinction  of  Caroling  dynasty,  131. 

Castile,  league  of  the  Cities  of,  160,  175. 

Catherine  of  Aragon,  173,  187-189. 

Censors,  the  Chinese  Council  of,  5,  6,  8. 

Central  America,  Constitutions  of  the  six 
states  of,  345-348;  character  of  the 
population,  348,  355~357. 


Charlemagne.     See  Charles  the  Great. 

Charles  Albert,  King  of  Savoy,  245. 

Charles  the  Bald,  130,  131. 

Charles  the  Great,  94;  and  the  Eu- 
ropean Empire,  101;  conference  at  Pa- 
derborn,  101;  crowned  Emperor  and 
Augustus,  102;  administrative  policy 
of,  104-108;  the  Missi  Dominici  es- 
tablished by,  110-112;  and  the  Bishop 
of  Rome,  136. 

Charles,  Prince,  202-205. 

Charles  I,  of  England,  his  struggle  with 
the  Parliament,  204-2 1 7 ;  death  of ,  2 1 7 . 

Charles  II,  of  England,  223;  policy  for 
the  restoration  of  Catholicism,  225- 
227;  death,  228. 

Charles  V,  Emperor,  176,  188. 

Charles  VII,  of  France,  182,  183. 

Charles  IX,  of  Sweden,  198. 

Charles  X,  of  France,  241. 

Childeric,  83. 

Chili,  Constitution  of,  328  et  seq.;  pop- 
ulation, 355. 

China,  political  history  of,  2-8;  Feudal 
system  in,  2,  3;  Constitution  of  1906, 
7;  Revolution  of  1911,  7;  Constitution 
of  IQII,  7,  8. 

Ching  Chun  Wang,  cited,  8. 

Chlotaire  II,  charter  of  liberties  given 
by,  90,  91,  92. 

Christian  Church,  the,  its  appearance  in 
Rome,  64;  persecutions  of,  65-69;  or- 
ganization and  power  after  250  A.  D., 
67;  establishment  of,  as  State  Church 
of  Roman  Empire,  69;  powers  of  in- 
tercession and  asylum  in  behalf  of 
Individual  Liberty,  69-72;  Clo vis  de- 
fender of,  in  Gaul,  85,  86;  the  de- 
fender of  Liberty  in  early  Frankish 
Kingdom,  87;  reclamation  of  state  do- 
main from,  by  the  Carolings,  96,  97; 
the  Bishop  of  Rome  and  the  States  of, 
101;  and  Individual  Liberty  in  the 
Carolingian  system,  108-110;  func- 
tions and  influence  in  England,  118- 
121;  development  in  the  Middle  Ages, 
134-148. 

Christian  II,  198. 

Chun  dynasty,  China  under  the,  2,  3. 

Clarendon,  Constitutions  of,  147. 

C16menges,  Nicholas  de,  Archdeacon  of 
Bayeux,  167. 

Clement  III,  142. 

Clement  V,  181. 


INDEX 


387 


Clement  VII,  173. 

Clisthenes  and  genuine  Athenian  de- 
mocracy, 43,  44. 

Clojo,  83. 

Clovis,  83;  and  Syagrius,  84,  85;  de- 
fender of  the  Church  in  Gaul  and  Ro- 
man Proconsul,  85,  86;  his  Kingship 
established,  86,  87,  88. 

Clovis  II,  92,  99. 

Coke,  Sir  Edward,  202,  206,  210. 

Colombia,  Constitution  of,  328  el  seq,; 
character  of  population,  355-357. 

Comitia  Centuriata,  the,  50,  51,  53-55, 
57- 

Comitia  Curiata,  the,  49-51,  53,  55,  57. 

Comitia  Tributa,  the,  52-59. 

Committees  of  Correspondence,  the,  291. 

"Compagnie  di  Ventura,"  the,  188. 

Conciliae  Plebis,  the,  52. 

Concordat  of  Worms,  143. 

Confederation  of  the  Rhine,  the,  244. 

Confucianism,  Imperial  policy  toward, 
4;  triumph  of,  5;  decline  of,  under 
Manchu  dynasty,  6. 

Confucius,  3;  political  philosophy  of,  4. 

Conrad,  Duke  of  Franconia,  131. 

Conrad  II,  Emperor,  139. 

Conrad,  Prince,  142. 

Constantine,  69. 

Constitution,  United  States,  sovereign 
power  provided  in,  299;  Individual  Im- 
munity against  governmental  power, 
300  et  seq. 

Constitutional  Government,  nature  of 
genuine,  370,  371. 

Constitutions,  European,  253  et  seq.; 
question  of  sovereign  power  in,  253- 
257;  the  Bill  of  Rights,  258;  Individ- 
ual Immunity  against  governmental 
power,  258-264;  the  French  Declara- 
tion of  the  Rights  of  Man,  260-262; 
the  right  of  assembly,  263 ;  right  of  pe- 
tition, of  association,  and  other  civil 
rights,  263,  264;  guarantee  of  Individ- 
ual Liberty,  265-283;  impeachment  of 
officials,  265-270;  Parliamentary  Gov- 
ernment, 268;  protection  against  en- 
croachments of  Legislature,  270-283; 
structure  of  original  Legislature,  271; 
the  bicameral  Legislature,  271,  272; 
parity  of  power  in  the  two  Chambers, 
272,  273;  imparity  of  power  and  the 
budget,  273-275;  suffrage  qualifica- 
tions, 275-277;  Upper  Chamber  more 


conservative  than  the  Lower,  277- 
280;  qualifications  of  eligibility  to  the 
Senate,  280,  281;  uninstructed  repre- 
sentation, 281;  structure  of  the  Legis- 
lature as  guarantee  of  Civil  Liberty, 
281-283;  course  of  development  in 
Legislative  eligibility  and  suffrage 
qualifications,  283-285;  Legislature 
and  political  society,  285,  286;  South 
American  states,  327-339;  Mexican, 
340-345;  Central  American  states, 
345-348;  West  Indian  Archipelago, 
349-355- 

Continental  Congress,  the  First,  292; 
the  Second,  293-297. 

Conventicle  Act,  the,  225. 

Corporations,  growth  of  in  the  United 
States,  364;  nature  of,  365;  Govern- 
ment control  over  and  the  excise  on, 
365,  366. 

Costa  Rica,  Constitution  of,  345-348. 

Cranmer,  173,  189. 

Crassus,  59,  60. 

Crimean  War,  the,  247. 

Cromwell,  Oliver,  213-216;  policy  of, 
214,  218,  219;  attitude  toward  the 
Parliament  of  1654,  220,  221;  tyr- 
anny of,  221;  death  of,  222. 

Cromwell,  Richard,  222. 

Cromwell,  Thomas,  188,  189. 

Crusades,  the,  142. 

Cuba,  the  Constitution  of,  349-351; 
character  of  population,  356,  358, 
360. 

Customs  Act,  the  United  States,  361. 

Cylon,  42. 

Cyprian,  Bishop,  135. 

Dagobert,  vice-royalty  of,  in  Austrasia, 

92;  his  success  in  Neustria,  92;  death 

of,  92. 

Daimaos,  policy  of  the,  10,  n. 
Danish  invasion  of  England,  123,  124. 
Dante,  164. 
Danton,  239. 

Decemvirate,  the  first,  53. 
Decius,  66,  67. 
Declaration  of  Rights,  the  English,  229, 

230. 
Declaration  of  the  Rights  of  Man,  the 

French,  260-262. 

Defense  of  the  Sacraments,  the,  172. 
Delos  Confederation,  the,  44. 
De'  Medici,  the,  165. 


388 


INDEX 


Denmark,  first  constitutional  conven- 
tion in,  246;  Constitution  of,  253  et 
seq.;  late  constitutional  changes  in, 
275,  276,  287. 

Denmark-Norway,  development  of  ab- 
solutism in,  198. 

Deutsche  Verfassungsgeschichte,  73. 

Diocletian,  the  Imperium  of,  63;  perse- 
cutor of  the  Christians,  66-68,  70. 

Divorce,  of  Lothair  II,  138;  the  question 
of  Royal,  173. 

Dominicans,  the,  167. 

Dorian  invasion,  the,  36,  37. 

Draconian  code,  the,  41. 

Dred  Scott  case,  the,  316-319,  360. 

Drusus,  Marcus  Livias,  59. 

Dutch  Republic,  Revolution  in,  243. 

Dutch  War,  the,  218. 


Earldormen,  the  Anglo-Saxon,  114-117, 
124. 

Ecuador,  Constitution  of,  329  et  seq.; 
population,  355-357- 

Ecumenical  Councils  of  the  Church,  the, 
167,  171,  172. 

Edgehill,  battle  at,  213. 

Edicts  of  Toleration,  the,  69. 

Edward  III,  of  England,  182. 

Eliot,  John,  204-207,  210. 

England,  Feudalism  in,  133,  134;  the 
Papacy  and  the  Church  in,  146-148; 
the  Reformation  in,  172-174;  devel- 
opment of  absolutism  in,  184-189; 
War  of  the  Roses,  185,  186;  subordi- 
nation of  Parliament  to  the  Royal 
power,  1 86,  187;  Tudor  despotism, 
187;  Cromwell's  management  of  Par- 
liament, 1 88,  189;  the  Revolution  in, 
201  et  seq.;  policy  of  James  I,  201- 
203;  the  Parliament  of  1614,  202; 
quarrel  between  King  and  Judges, 
202;  Parliament  of  1621,  203;  the 
Spanish  controversy,  203,  204;  acces- 
sion of  Charles  I,  204;  struggle  be- 
tween King  and  Parliament,  204,  205; 
benevolences  and  forced  loans,  205; 
the  Petition  of  Right,  206;  dissolu- 
tion of  the  Parliament  of  1629,  207; 
plan  of  Wentworth  and  Laud  for  ab- 
solute Government,  207;  extortions  of 
the  Royal  Exchequer,  207,  208;  ec- 
clesiastical supremacy  of  the  Crown, 
208,  209;  Episcopal  Government  re- 


pudiated in  Scotland  and  arbitrary 
taxation  opposed  by  Hampden,  209; 
the  Scotch  Covenant  and  the  Short 
Parliament,  209,  210;  the  Long  Par- 
liament of  1640,  210;  acts  undoing 
absolutism,  211;  the  condition  in  Ire- 
land, 21 1 ;  attempt  of  the  Commons 
to  expel  the  Bishops  from  the  House  of 
Lords,  212;  civil  war,  2 1 2-2 1 7 ;  Edge- 
hill  and  Marston  Moor,  213;  the  pol- 
icy of  Cromwell,  214;  struggle  be- 
tween Presbyterians  and  Non-con- 
formists for  the  mastery  of  Parlia- 
ment, 214,  215;  conflict  between 
Parliament  and  the  Army,  215,  216; 
Royalists  and  Presbyterians  routed  at 
Wigan  and  Warrington,  216;  de- 
mands of  the  Council  of  Officers  of  the 
Army,  216;  Commons'  declaration  of 
sovereignty  and  execution  of  the  King, 
217;  the  Army  and  its  Council  of  Of- 
ficers, 218-220;  dissolution  of  the 
Rump  Parliament,  218;  the  Praise- 
God-Barebones  Parliament  and  its 
Instrument  of  Government,  219,  220; 
the  Parliament  of  1654,  and  Crom- 
well's tyranny,  220-222;  restoration 
of  the  House  of  Lords,  222;  Richard 
Cromwell,  222;  the  Convention  and 
its  work,  223-225;  restoration  of  the 
King  and  the  ancient  Constitution, 
223,  224;  triumph  of  the  Cavaliers, 
225;  restoration  of  the  State  Church, 
225;  the  Act  of  Uniformity,  and  the 
Conventicle  Act,  225;  the  King  and 
religious  toleration,  226;  plot  for  re- 
establishment  of  Roman  Catholicism, 
225-227;  reactionary  movements  of 
King  James,  228;  Constitutional  Con- 
vention of  1689  and  the  accession  of 
William  of  Orange,  229;  the  Declara- 
tion of  Rights,  229;  sovereignty  of 
Parliament  result  of  Revolution,  230, 
231;  present  Constitution  of,  253  et 
seq. 

Ephetae,  Court  of  the,  41,  42. 

Ephors,  College  of,  its  powers  in  limiting 
autocracy,  38,39;  downfall  of,  40,46. 

Etats-Ge"n6raux,  the,  179,  234-236. 

Europe,  the  Revolution  in  England, 
201-231;  in  France,  232-243;  in  the 
Netherlands,  the  Dutch  Republic, 
and  Switzerland,  243;  in  Italy,  243;  in 
Spain  and  Portugal,  244;  restoration 


INDEX 


389 


of  the  old  authorities,  244;  reappear- 
ance of  revolution  everywhere,  245- 
249;  constitutional  progress  through- 
out, 245,  246;  the  reaction  of  1850, 
246;  Crimean  War  and  its  results, 
247;  Spanish  Revolution  of  1867  and 
latest  Revolution  in  Portugal,  247; 
the  Franco-Prussian  War,  248;  Rus- 
so-Turkish  War,  248;  Norway  and 
Sweden,  249;  results  of  the  revolu- 
tionary movement  in,  249-251;  dif- 
ferences between  Teuton  and  Latin  in 
philosophy  of  the  Revolution  in,  251, 
252;  present  Constitutions  of.  See 
Constitutions. 
Exarchate  of  Ravenna,  the,  97, 101, 136. 

Ferdinand,  Emperor,  246. 

Ferdinand  of  Aragon,  175,  176. 

Feudal  system,  in  China,  2,  3 ;  in  Japan, 
10;  in  Abyssinia,  29, 30;  in  the  Anglo- 
Saxon  state,  124;  origin  and  growth 
of,  126-134,  151,  152;  effect  on  the 
Church,  166. 

Feudatories,  the,  131, 132. 

Fideles,  the,  122,  123. 

Florentine  Republic,  the,  195,  196. 

Foscari,  the,  165. 

France,  the  Papacy  and  the  Church  in, 
145,  146;  development  of  absolute 
Government  in,  178-184;  the  judicial 
Parliaments,  178,  179;  conflict  with 
the  Church,  170-181;  the  hundred 
years'  war,  182;  creation  of  a  standing 
army,  182,  183;  Royal  authority  over 
the  Church,  183;  abolition  of  the  Par- 
liament of  Paris  in  1771,  and  its  recall 
by  Louis  XVI,  232;  disordered  fi- 
nances and  proposed  reforms  of  Tur- 
got  andNecker,  233;  results  of  partic- 
ipation in  American  Revolution,  233; 
the  Assembly  of  the  Notables,  233; 
the  summoning  of  the  Etats-Ge'ne'raux 
and  its  constitution,  234;  the  Third 
Estate,  235,  236;  consolidation  of  the 
Estates  into  the  National  Assembly, 
236;  Constitution  of  1790,  236,  237; 
radical  course  of  the  Revolution,  237; 
flight,  capture,  and  imprisonment  of 
the  King,  237;  revision  of  the  Consti- 
tution, 238;  imprisonment  of  the 
Royal  Family  and  the  Convent,  238, 
239;  the  tyranny  of  Danton,  Robes- 
pierre, and  Marat,  239;  Constitution 


of  1795,  239;  the  Consulate  of  Bona- 
parte, 239;  the  Imperium  of  Bona- 
parte and  Individual  Liberty,  240; 
restoration  of  the  Bourbons,  and  es- 
tablishment of  Constitution  of  1814, 
240,  241;  the  Revolution  of  July,  1830 
and  the  new  Constitution,  241;  Revo- 
lution of  1848  and  Constitution  of 
1848,242;  Louis  Napoleon  Bonaparte 
and  the  Constitution  of  1851,  242; 
overthrow  of  Second  Empire  and 
present  Constitution,  242;  success  of 
French  arms  under  Bonaparte,  243, 
244;  present  Constitution,  253  et  seq. 

Franciscans,  the,  167. 

Franco-Prussian  War,  the,  248. 

Prankish  Kingdom,  the,  development  of 
Ducal  office  and  power  in,  82;  ad- 
vance of  Royal  system  of  Government 
in,  83;  rebellion  of  Syagrius  and  loy- 
alty of  Clovis,  84,  85;  influence  of  the 
Bishops,  85;  establishment  of  Kingly 
office  and  tenure,  86;  the  Church 
as  defender  of  Liberty,  87;  the  land 
system  and  the  Manorial  Lords,  87- 
89;  the  system  of  commendation,  89; 
Counts  as  Manorial  Lords,  89;  charter 
of  liberties  given  by  Chlotaire  II,  90; 
Individual  Liberty  and  aristocratic 
Government,  91 ;  rule  of  Dagobert,  92; 
the  period  of  the  Rois  Faineants,  92; 
93;  the  rule  of  Pippin,  93;  reign  of 
Louis  the  Pious  over,  130. 

Frederick  II,  144. 

Frederick  the  Great,  the  Monarchy  of, 
191,  192. 

Frederic  William  IV,  246. 

Free  Cities,  the,  development  of,  157- 
161;  relation  between  King  and,  158- 
160,  175,  176,  184. 

Fueros,  the  Spanish,  177. 

Gaius  Graccus,  59. 

Georgia  vs.  Stanton,  case  of,  321. 

Germania,  as  portrayed  by  Tacitus, 
73-79;  social  distinctions  in,  74-76; 
political  and  governmental  institu- 
tions, 76-81;  the  tribal,  the  village, 
and  the  hundred  Assemblies,  76-79; 
the  idea  of  Royalty  in,  79;  form  of  the 
German  state,  79;  the  guarantee  of 
Civil  Liberty  in,  80,  81. 

Germany,  development  of  absolutism  in, 
190-193;  constitutional  Government 


390 


INDEX 


in,  246;  reaction  of  1850,  246;  pres- 
ent Constitution  of,  248,  253  et  seq. 

Gerson,  Chancellor  de,  167. 

Golden  Bull,  the,  190. 

Gondomar,  Spanish  Ambassador,  202. 

Goth,  Bertrand  de,  180. 

Gracchi,  attempted  reforms  of  the,  58, 
59- 

Greece,  ancient,  political  system  of,  36; 
the  Spartan  state,  36-40;  the  Athe- 
nian state,  40-47;  states  of,  despotic 
Governments,  47;  rule  of  Macedon 
over,  48;  Revolution  in,  245;  present 
Constitution  of,  254  et  seq. 

Greeks,  the,  and  the  state,  35. 

Gregory  III,  94. 

Gregory  VII,  142,  145,  166. 

Gregory  IX,  144,  145. 

Gregory  the  Great,  118. 

Grimoald,  99,  100. 

Guatemala,  Constitution  of,  345-348. 

Gustavus  Adolphus,  of  Sweden,  198. 

Hamilton,  Duke  of,  216. 

Hampden,  John,  205,  209,  213. 

Han  dynasty,  China  under  the,  4-6. 

Hawaiian  Islands,  the,  360. 

Hayti,  Constitution  of,  351-353. 

Helvetic  Republic,  the,  243. 

Henry  II,  147. 

Henry  III,  of  Germany,  140. 

Henry  V,  Emperor,  143. 

Henry  VI,  Emperor,  144. 

Henry  VII,  186. 

Henry  VIII,  172,  173,  187-189. 

Henry,  Patrick,  292. 

Herodotus,  43. 

Hildebrand,  140,  142. 

Hippias,  tyranny  of,  43. 

Hohenzollern,  the  House  of,  190-192. 

Hollis,  213. 

Holy  Alliance,  the,  245. 

Holy  Hermandad,  the,  160,  175. 

Holy  Roman  Empire,  the,  94;  condi- 
tions which  led  to  its  creation,  95-99; 
its  work  for  civilization,  99 ;  history  of 
the  creation  of,  99-102;  its  system 
of  Government  and  Liberty,  102-112; 
establishment  of,  139;  Bonaparte's 
invasion  of,  244. 

Honduras,  Constitution  of,  345-348. 

Huguenots  of  Rochelle,  the,  205. 

Hundred  years'  war,  the,  182. 

Hungary,  Constitution  of,  253  et  seq. 


Imperial  system  of  Charlemagne,  over- 
throw of,  130,  131. 

Income  Tax,  366-372. 

Initiative,  Referendum,  and  Recall,  the, 
374-378. 

Innocent  III,  148. 

Innocent  IV,  144,  145. 

Inquisition,  the  Spanish,  176,  177. 

Ionian  invasion,  the,  40. 

Iran,  ancient,  16. 

Ireland,  Wentworth's  plan  for  absolu- 
tism in,  208;  battle  between  Catho- 
lic and  Protestant,  211. 

Isabella  of  Castile,  175. 

Isagoras,  44. 

Italy,  reign  of  Bernhard  in,  130,  131; 
effect  of  the  Renaissance  in,  165; 
development  of  absolutism  in,  190, 
193-197;  the  Duchy  of  Milan,  193; 
the  Republic  of  Venice,  194;  the  Flor- 
entine Republic,  195,  196;  Naples, 
197;  consolidation  of  the  States  of  the 
Church,  197;  the  Revolution  and  the 
Napoleonic  system,  243,  244;  consti- 
tutional Government  in,  245,  246; 
present  Constitution,  253  et  seq. 

Ito,  Marquis  of,  12. 

James  I,  201-204. 

James  II,  228;  reactionary  movements 

of,  228. 

Janizaries,  the,  21,  22. 
Japan,  conquest  of,  8,  9;  the  Mikado's 

absolutism  in,  9,  12;    Feudal  system 

in,  10 ;   under  the  Shogunate,  n,  12; 

Constitution  of  1889,  12-15. 
Jenkins,  Governor,  of  Georgia,  320. 
Jesuit  Reaction,  the,  170. 
John,  King,  134. 
Johnson,  President,  320,  323. 
Joseph  II,  Emperor,  193. 
Jurists,  the,  rise  of,  158. 
Justiciar,  the  Grand,  177. 

King's  Theyns,  the  Anglo-Saxon,  117, 

121,  124. 
Knighthood,  Orders  of  Castilian,  176. 

Lafayette,  237. 
Lanfranc,  147. 
Langton,  148. 

Laud,  Archbishop,  204;  his  plan  for 
English  National  Church,  208,  209, 


INDEX 


Leo  III,  94,  101,  102. 

Lex  Licinia,  the,  55. 

Lex  Publilia,  the,  53. 

Lex  Sacrata,  the,  52. 

Lex  Valeria,  the,  51. 

Liberia,  28,  29. 

Lincoln,  President,  318,  319. 

Lombards,  the,  in  Italy,  96. 

Lothair,  130,  131,  136. 

Lothair  II,  the  divorce  case  of,  138. 

Loughborough  vs.  Blake,  case  of,  361. 

Louis  IX,  178. 

Louis  XI,  182,  183;  policy  of,  184. 

Louis  XIV,  226. 

Louis  XV,  232. 

Louis  XVI,  232-238. 

Louis  XVIII,  240. 

Louis  Philippe,  Duke  of  Orleans,  241. 

Louis  the  Pious,  reign  of,  over  Prankish 

Empire,  130. 

Luther,  Martin,  169,  172,  187. 
Luther  vs.  Borden,  case  of,  321. 
Luxemburg,  Constitution  of,  253  et  seq. 
Lycurgan,  Constitution,  the,  37~39- 

McCardle  case,  the,  322,  323. 
McKinley,  President,  358. 
Macedon,  rule  of,  over  Greece,  48. 
Magnus,  Albertus,  164. 
Mahomet,  religion  of,  16,  17. 
Manchu  dynasty,  China  under  the,  6. 
Manorial  estates,  the,  129,  155. 
Manorial   Lords,   the,  87-89,  95,   106, 

107. 

Marat,  239. 
Marbury  vs.  Madison,  the  case  of,  310- 

313,  315- 

Marcus  Aurelius,  66. 

Marius,  the  Consulship  of,  59. 

Marshall,  Chief  Justice,  quoted,  310- 
312,  314,  315- 

Marston  Moor,  battle  of,  213. 

Martel,  Charles,  94. 

Menelek,  Emperor,  30. 

Merovius,  83. 

Merryman  case,  the,  319. 

Mersen,  the  compact  of,  131. 

Mexico,  the  Constitution  of,  340-343; 
sovereignty  in  the  Constitution,  340; 
the  Bill  of  Rrights,  341;  guarantee  of 
civil  rights,  342;  the  Judiciary,  342, 
343;  anarchy  and  despotism  in,  343, 
344;  character  of  the  people,  344, 345, 
355-357- 


Middle  Ages,  the,  definition  of,  126-151; 
origin  and  growth  of  Feudal  system, 
126-134;  overthrow  of  Imperial  sys- 
tem, 130,  131;  extinction  of  Carolings 
and  triumph  of  the  Feudatories,  131; 
nature  of  the  new  Monarchy,  132; 
development  of  the  Church  and  the 
Papal  system,  134-148;  the  popula- 
tion, 148-150;  method  of  thought 
and  reasoning,  150,  151;  failure  of 
Feudal  system  in  regard  to  Individual 
Liberty,  151-153;  the  Church  and 
Civil  Liberty,  153-155- 

Mikado,  Government  of  the,  9-12. 

Milan,  the  Duchy  of,  193. 

Milligan  case,  the,  320. 

Minamoto  Yoritomo,  Daimao,  10. 

Mirabeau,  236. 

Missi  Dominici,  the,  no;  functions  of, 
in,  112,  122,  146. 

Mississippi  vs.  Johnson,  the  case  of,  320. 

Mohammedanism,  influence  of,  in  Per- 
sia, 1 6-i  8,  19;  hi  the  Ottoman  Em- 
pire, 20-23;  in  Morocco,  31-33;  and 
constitutional  Liberty,  34. 

Monarchy,  the,  weakening  of,  by  Feu- 
dal system,  130,  131;  revival  of,  157 
et  seq.;  the  Free  Cities,  157-161;  the 
Renaissance,  161-166;  the  Reforma- 
tion, 166-174;  development  of  abso- 
lutism in  Spain,  175-177;  in  France, 
178-184;  in  England,  184-189;  in 
Germany,  190-193;  in  Italy,  193-197; 
hi  Sweden,  197,  198;  hi  Denmark- 
Norway,  198;  in  Russia,  198,  199; 
beneficial  results  to  civilization,  199, 
200. 

Monmouth,  Duke  of,  228. 

Monroe  Doctrine,  the,  373. 

Montagu,  204. 

Montenegro,  Constitution  of,  253  et  seq. 

Morocco,  28;  political  system  of,  31- 
33;  power  of  the  Ulemas'  College,  32, 
33- 

Mujtahid  of  Kerbela,  the,  18. 

Naples,  197. 

Naseby,  battle  at,  214. 

National    Constituent    Assembly,    the 

French,  236-239. 
Necker,  233,  234. 
Netherlands,   Revolution  in  the,   243; 

Constitution  of,  253  et  seq. 
Neustria,  90-93. 


392 


INDEX 


Nicaragua,  Constitution  of,  345-348. 
Nicholas  I,  138. 
Nogaret,  180. 

Norway,  independence  of,  249;  present 
Constitution,  253  et  seq. 

Gates,  227. 

Octavian,  prerogatives  of,  61-63. 

Odoacer,  84. 

Olivarez,  203. 

Osmanli,  the,  settlement  of,  in  Asia 
Minor,  20-22. 

Ottoman  Empire,  the,  establishment  of, 
19,  20;  Mohammedanism  in,  20-23; 
power  of  the  priesthood,  21;  trans- 
formation of  military  system  and  es- 
tablishment of  the  Harem,  21,  22;  ef- 
fect on,  of  contact  with  Europe,  21, 
22;  decadence  of,  22;  Constitution  of 
1876,  22,  23;  Revolution  of  1908  and 
the  advent  of  the  Young  Turks,  23; 
provisions  of  present  Constitution, 
23-26. 

Panama,  Constitution  of,  345-348. 

Papacy  of  Rome,  the,  its  work  for  civ- 
ilization, 97-99;  historically  neces- 
sary, 137;  election  by  the  Cardinals, 
140;  divine  origin  of,  disputed,  169, 
170;'  seat  of,  transferred  to  Avignon, 
180,  181. 

Paraguay,  Constitution  of,  328  et  seq.; 
population,  355-357- 

Parliament  of  Paris,  the,  179;  its  aboli- 
tion and  recall,  232,  234. 

Parliamentary  Government,  268,  269. 

Pericles  and  democracy,  45,  46. 

Perry,  Commodore,  n. 

Persia,  political  history  of,  15-19;  influ- 
ence of  Mohammedanism  in,  16-18, 
19;  National  Council,  18,  19;  Con- 
stitution of  1906,  19;  Revolution  of 
1909,  19;  war  with  Athens,  44. 

Peru,  Constitution  of,  329  et  seq.;  popu- 
lation, 355-357- 

Peter  the  Great,  199. 

Petition  of  Right  of  1628,  English,  206. 

Petrarcha,  Francesco,  162. 

Philip  Augustus,  145,  146. 

Philip  II,  of  Spain,  176,  177. 

Philip  IV,  of  France,  178-181. 

Philip  of  Valois,  182. 

Philippines,  the,  359,  360. 

Pippin  of  Heristal,  93,  94. 


Pippin  of  Landen,  90,  92,  99. 

Pippin  the  Short,  94,  100,  101. 

Pisistratus,  43. 

Pompey,  59,  60. 

Port  Bill  and  Regulating  Act,  the,  291. 

Porto  Rico,  359,  360. 

Portugal,  Bonaparte  in,  244;  constitu- 
tional Government  in,  245;  reaction  of 
1850  in,  247;  present  Constitution,  253 
et  seq. 

"Pragmatic  Sanction,"  the,  183. 

Praise-God-Barebones  Parliament,  the, 
219. 

Prussia,  the  Monarchy  of,  190-192. 

Pym,  John,  210,  212,  213. 

Randolph  Resolutions,  the,  309. 

Recall,  the,  applied  to  elected  officials, 
375-377;  to  Judges  and  Judicial  de- 
cision, 377,  378. 

Reconstruction  Acts,  the,  321-324. 

Referendum,  the,  in  United  States  Gov- 
ernment, 375. 

Reformation,  the,  166-174;  condition  of 
the  Church  in  fifteenth  century,  166; 
creation  of  the  Monastic  orders,  167; 
morals  and  discipline  of  the  clergy, 
167,  1 68;  demands  of,  in  regard  to 
theological  doctrines,  168,  169;  influ- 
ence on  Government,  civil  and  ecclesi- 
astical, 169-174;  the  Counter-Refor- 
mation, 170;  the  National  Church 
idea,  170-172;  the  movement  in  Eng- 
land, 172-174;  political  results,  174; 
opposition  in  principle  to  absolute 
Monarchy,  201. 

Renaissance,  the,  161-166;  collection  of 
classic  manuscripts,  162;  invention  of 
printing,  163;  the  forerunners  of ,  164; 
character  of  the  movement,  164,  165; 
effect  of,  in  Italy,  165;  its  influence  on 
Europe,  166;  opposition  in  principle 
to  absolute  Monarchy,  201. 

Riparian  Franks,  the,  88. 

Robespierre,  239. 

Rois  Faineants,  the,  92. 

Romanoff,  Michael,  Czar  of  Russia,  198, 

Rome,  political  institutions  of  ancient, 
49;  functions  of  Senate  and  the  Co- 
mi  tia  Curiata,  49;  struggles  between 
Patrician  and  Plebeian  orders,  50-56; 
the  Comitia  Centuriata,  50;  over- 
throw of  the  Kingship  and  establish- 
ment of  Patrician  Republic,  51;  the 


INDEX 


393 


Lex  Valeria,  51;  the  Lex  Sacrata  52; 
the  Comitiae  Tributa,  52;  the  first 
Decemvirate,  53;  "the  Twelve  Ta- 
bles," 53;  eligibility  of  Plebeians  to 
Consulship,  55;  becoming  an  Empire, 
56;  transformations  of  Constitution 
under  influence  of  conquests,  57;  rule 
of  the  Senate,  57;  decay  of  Roman 
character  and  ruin  of  agriculture,  58; 
attempted  reforms  of  the  Gracchi,  58, 
59;  downfall  of  Republican  Constitu- 
tion under  the  Dictatorship  of  Sulla, 
59;  Government  reconstructed  by 
Caesar,  60;  anarchy  following  assassi- 
nation of  Caesar,  61;  under  Octavian, 
61-63;  the  Imperium  of  Diocletian 
and  the  downfall  of  constitutional 
Liberty,  63;  religious  toleration,  64; 
appearance  of  Christianity  in,  64; 
persecutions  of  the  Christians,  65-69; 
establishment  of  Christian  Church  as 
State  Church,  69;  Individual  Liberty 
under  protection  of  the  Church,  70- 
72. 

Roumania,  Constitution  of,  253  et  seq. 

Rump  Parliament,  the  English,  217, 
218,  223. 

Russia,  development  of  absolutism  in, 
198,  199;  constitutionalizing  of,  248; 
present  Constitution,  253  et  seq. 

Saldanha,  Count  of,  245. 

Salian  Franks,  the,  79,  83;  the  law  book 
of,  86,  88. 

Salvador,  Constitution  of,  345-348. 

Santo  Domingo,  Constitution  of,  353- 
355- 

Saxony,  the  Monarchy  of,  192. 

Schmoller,  Professor,  381. 

Scotland,  Episcopal  Government  repudi- 
ated in,  209-211. 

Septimius  Severus,  66,  67. 

Servia,  Constitution  of,  253  et  seq. 

Servius  Tullius,  reforms  of,  49,  50. 

Sforzas,  the,  165. 

Shaftsbury,  Earl  of,  228. 

Sharkey,  Ex-Governor,  of  Mississippi, 
320. 

Sheikh  ul  Islam,  the,  21,  23. 

Shintoism,  10,  n. 

Shire-moots,  the  Anglo-Saxon,  116. 

Shogunate,  Japan  under  the,  10-12. 

Sigebert,  92. 

Solon,  political  reforms  of,  42,  43. 


Solonian  Constitution,  the,  42,  43. 

South  America,  constitutional  systems 
of  the  states  of,  327-331;  structure  of 
the  Government,  331;  distribution  of 
governmental  powers,  332,  333;  the 
Legislature  and  the  length  of  legisla- 
tive terms,  333~334J  power  of  one 
Chamber  to  overcome  opposition  of 
the  other,  334-336;  the  election  meth- 
ods, 336;  the  position  and  power  of 
the  Judiciary,  337,  338;  the  Argen- 
tine Republic,  339;  character  of  the 
population,  355-357- 

Spain,  the  cities  and  the  national  Mon- 
archy in,  1 60;  the  absolute  Monarchy 
in,  175-177;  nationalizing  of  the 
Church  in,  176;  the  Fueros,  and  the 
destruction  of  the  Justiciar,  177;  con- 
troversy with  England,  203;  Bo*na- 
parte  in,  244,  327;  outbreak  of  1836 
and  adoption  of  Constitution,  245; 
Revolution  of  1867,  247;  present  Con- 
stitution, 253  et  seq. 

Spanish- American  War,  the,  325,  358- 
360. 

Spartan  Commonwealth,  social  char- 
acter of,  37;  political  system  of,  38, 
39;  decay  of,  40;  invasion  of  Athens 
by,  43,  44. 

Stephen  III,  94,  100. 

Sulla,  the  Dictatorship  of,  59. 

Sunder  land,  Robert,  Earl  of,  231. 

Supremacy,  the  Act  of,  173,  187-189. 

Sweden,  development  of  absolutism  in, 
197,  198;  separation  of  Norway  and, 
249;  present  Constitution  of,  253  et 
seq. 

Switzerland,  the  Revolution  in,  243; 
present  constitution  of,  253  et  seq. 

Syagrius,  the  rebellion  of,  84,  85. 

Tacitus,  Publius  Cornelius,  the  Germania 

of,  73-79- 

Taney,  Chief  Justice,  317,  318. 
Templar  Order  of  Knights,  the,  181. 
Terentilius  Arsa,  53. 

Thirty  Years'  War,  the,  174,  190. 
Tiberius  Graccus,  58,  59. 
Tokugawa  leyas,  Daimao,  n. 
Torquemada,  176. 
Towns,  royal  incorporation  of,  158. 
Trajan,  66. 


394 


INDEX 


Trent,  the  Council  of,  168,  170. 
Tribal  Assembly,  the,  of  the  primitive 

German  state,  76-80. 
Tribunes,  the  Roman,  52-59. 
Tsin  dynasty,  China  under  the,  3,  4. 
Turgot,  233. 

Turkey.     See  Ottoman  Empire. 
Turks,  the  Young,  23. 
"Twelve  Tables,  the,"  53. 

Ulemas,  the,  power  of,  21,  23,  26;  Col- 
lege at  Fez,  32,  33. 

"Unam  Sanctam,"  the,  180. 

Uniformity,  the  English  Act  of,  225. 

United  States,  the  constitutional  devel- 
opment in,  288;  position  of  the  Brit- 
ish crown  in  relation  to  the  thirteen 
Colonies,  289,  290;  Colonies  under 
British  law,  290;  growth  of  the  Col- 
onies, 290;  the  Committees  of  Cor- 
respondence, 291;  first  Continental 
Congress,  292;  the  Second  Continen- 
tal Congress,  293  et  seq.;  States'  rights 
developments  and  the  "Articles  of 
Confederation,"  294-297;  assembly 
of  the  Constitutional  Convention, 
297;  attitude  of  Rhode  Island  toward 
the  Constitution,  298;  adoption  of 
the  Constitution  and  its  fundamental 
principles,  298-306;  original  defect  of 
the  national  bill  of  rights,  302;  struc- 
ture of  the  Government,  303,  304; 
elective  character  of  the  Government, 
304;  the  check-and-balance  system, 
304,  305;  position  and  power  of  the 
Judiciary,  306  et  seq.;  contest  with 
State  of  Georgia,  313-315;  Supreme 
Court  decision  in  the  Dred  Scott  case, 
315-318;  in  the  Merry  man  case,  319; 
in  the  Milligan  case,  320;  in  the  case 
of  Mississippi  vs.  Johnson,  320;  Geor- 
gia vs.  Stanton,  321;  Luther  vs.  Bor- 
den,  321;  the  McCardle  case,  322, 
323;  thirteenth  and  fourteenth  con- 
stitutional amendments,  324;  recent 
change  of  public  opinion  concerning 
Government  and  Liberty,  325,  358; 
war  with  Spain  and  territorial  expan- 
sion, 358  et  seq.;  Government  of  terri- 
tories under  the  Constitution,  359- 
363;  Customs  Acts  and  decisions  of 


the  Supreme  Court,  361-364;  Gov- 
ernment control  over  Corporations, 
364-366;  the  income  tax,  366-372; 
the  new  political  system,  373-374; 
characteristics  of  the  people,  373;  the 
initiative,  referendum,  and  recall,  374- 
378;  the  recall  and  weak  administra- 
tion of  Government,  375-377;  the 
Judges  and  the  recall,  377,  378;  retro- 
gression in  the  last  twenty  years,  378; 
the  path  of  true  progress,  379;  Gov- 
ernment and  social  uplift,  380,  381; 
effect  of  the  growth  of  Government, 
382. 

Urban  II,  142. 

Uruguay,  Constitution  of,  329  et  seq.; 
355- 

Vasa,  Gustavus,  198. 

Venezuela,  Constitution  of,  329  et  seq.; 

character  of  population,  355-357. 
Venice,  the  Republic  of,  194. 
Visconti,  the,  165. 

Waitz,  George,  73. 

War  of  the  Roses,  the,  185,  186. 

Wentworth,  Earl  of  Strafford,  207,  208, 

2IO,   211. 

West  Indian  Archipelago,  the,  Constitu- 
tions of  the  three  states,  349-355;  the 
Cuban  Constitution,  340-351;  the 
Haitian  Constitution,  351-353;  Con- 
stitution of  Santo  Domingo,  353-355; 
character  of  the  population,  355-357. 

Westphalian  compact,  the,  190,  191. 

William  of  Normandy,  133,  147. 

William  of  Orange,  228;  accession  to 
throne  of  England,  229,  230;  his  Min- 
isters and  the  Parliament,  231. 

Witenagemots,  the  Anglo-Saxon,  117, 
121,  122,  124. 

Wolsey,  Cardinal,  187;  his  policy  and 
fate,  1 88,  189. 

Won  Wang  dynasty,  China  under  the, 
3,  4- 

Worcester  vs.  Georgia,  case  of,  314,  315. 

Ximenes,  Cardinal,  176. 
Zeno,  Emperor,  84. 


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14  DAY  USE 

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DEPT. 


0894! 


